The Queen v Clemens[1998] QCA 58

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

 C.A. No. 404 of 1997

Brisbane

[R. v. Clemens]

THE QUEEN

v.

ELIZABETH ANNA CLEMENS

(Applicant)

Fitzgerald P.

McPherson J.A.

Ambrose J.

Judgment delivered 17 April 1998

Judgment of the Court.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: CRIMINAL - Supplying dangerous drug - Sentencing - Whether sentence manifestly excessive - Offences committed while on parole - Parole cancelled under s. 187(1) Corrective Services Act 1988 - Under s. 190(1) parole does not count as time served under earlier sentence except for time spent in custody after suspension of parole - Fresh parole recommendation under s. 157(3)(a) Penalties and Sentences Act 1992.

R. v. Cutajar (1995) 85 A.Crim.R. 280;

R. v. Truman (16 April 1997, C.A. No. 11 of 1997);

R. v. Pascoe (22 July 1997, C.A. No. 184 of 1997);

R. v. Dickinson (8 October 1997, C.A. No. 318 of 1997); and

R. v. Vidler (9 October 1997, C.A. No. 329 of 1997).

Counsel:  Ms. D. Richards for the applicant

Mr D. Bullock for the respondent

Solicitors:  Legal Aid (Queensland) for the applicant

Director of Public Prosecutions (Queensland) for the respondent.

Hearing Date:  6 April 1998

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 17 April 1998

This application for leave to appeal against sentence raises the difficulty, not infrequently encountered, of arriving at an appropriate sentence for an offender who re‑offends while released on parole in respect of a sentence imposed for an earlier offence.  The question is to a considerable extent governed by particular provisions of the Corrective Services Act 1988, which directly or indirectly affect the interaction of the two sets of sentences.  The first of those provisions, which is in s. 185(1) of that Act, is that a prisoner’s parole may at any time before the parole period has expired be cancelled, suspended, amended or varied by order of the Queensland Community Correction Board.  Experience suggests that it is wise not to make general statements about matters arising under either the Corrective Services Act or the Penalties and Sentences Act 1992; but, with that caution in mind, it may be said that the practice of the Board under s. 185(1) appears to be to suspend release on parole of a prisoner who is charged with an offence alleged to have been committed during the parole period.  At least that is so in the case of one who is returned to custody pending proceedings and sentencing for the further or later offence alleged to have been committed by the prisoner.

That was what happened to the applicant here.  She had been sentenced on 29 April 1996 to imprisonment for three years for  20 offences of supplying or possessing heroin, with a recommendation for parole after six months.  The recommendation was given effect and she was released on parole, presumably in about October 1996, which is about six months after sentencing for those offences.  She was subsequently charged with a further three offences of supplying heroin in December 1996, whereupon the Board acted under s. 185(1) to suspend her parole, and she was returned to custody on 16 April 1997.

Conviction and sentence for that second series of offences followed on 16 October 1997, when a sentence of imprisonment of four years was imposed, together with a recommendation for parole after 18 months.  As regards that conviction and sentence, s. 187(1) of the Corrective Services Act is explicit.   It provides that where a prisoner who has been released on parole is sentenced to another term of imprisonment, the prisoner’s parole shall, on conviction for an offence committed during the parole period, “ipso facto be cancelled”, whether or not the parole period has expired.  Section 187(2) contains some exclusions from or qualifications on that statutory rule; but none of them is relevant here.  The applicant’s parole, which had not yet expired on 16 October 1997, was therefore automatically cancelled when on that date she was convicted and sentenced to the further term of imprisonment for four years.

Section 190(1) is also explicit about the effect of cancelling a prisoner’s parole.  It says that “no part of the time between the prisoner’s release on parole and the prisoner[’s] recommencing to serve” the unexpired portion of the prisoner’s term of imprisonment (on the paroled offence) “shall be regarded as time served in respect of that term”.  Section 190(1), however, also contains a specific exception to that general rule. Having in effect declared that the time between release on parole and recommencing to serve the sentence on the earlier offence is to be ignored, it then proceeds to add:

“... other than the period (if any) during which the prisoner was kept in custody consequent upon the prisoner’s parole being suspended...”.

Although it does not say so expressly, it seems clear that what is meant is that the time a prisoner spends in custody between the date when parole is suspended and the date when it is cancelled is to be taken into account; in other words, the period of time spent in custody is to be treated as time served under the earlier sentence for as long as the parole in respect of it was merely suspended and not cancelled.

As far as can be ascertained, it is that exception in s. 190(1) that accounts for the position in which the applicant now finds herself in relation to the sentence imposed on her on 29 April 1996.  She had served six months of that sentence when she was released on parole in about October 1996.  She committed the second series of offences in December 1996 for which she was prosecuted.  Her parole was suspended on 16 April 1997 and she was returned to custody on that day.  She remained in custody until she was brought before the court on the second series of offences on 16 October 1997, when she was convicted and sentenced to the four year term.  Under the general rule established by s. 190(1), no part of the time between her release on parole in October 1996 and her subsequent conviction and sentencing in October 1997 would have counted as time served under her sentence of three years imprisonment on her first offences, were it not that her parole had been merely suspended by the Board.  To that extent she gained credit towards that sentence under the exception provided in s. 190(1) as regards the time she spent in custody while that suspension of parole continued to operate, which it did until she was convicted and sentenced in October 1997.

The position that prevailed on 16 October 1997 therefore was that, as regards the three year sentence imposed in April 1996, the applicant had served: (a) 6 months before release on parole; and (b) a further effective six months in custody from 16 April 1997 to 16 October 1997 while her parole was suspended and before it was cancelled on 16 October 1997.  From then until now in early April 1998, she has served a further period of 6 months imprisonment.   Aggregating those three periods would produce a total served under the original three year sentence of about 18 months in all.  Eighteen months is half of that original sentence of three years, so that, as regards that sentence, she would now qualify to be considered for parole under s. 166(1)(d) of the Corrective Services Act.  It provides that a prisoner is not eligible for release on parole until he or she has served half of the term of imprisonment to which he or she was sentenced; but s. 166(1)(d) is commonly construed in a converse sense as affirmatively conferring eligibility for parole at the half-way mark, which the applicant would now in April 1998 have attained, or at least be approaching.

We were, however, informed that the Corrective Services Commission has calculated the applicant’s parole date as being 16 April 1999, which is 18 months after sentencing for the second series of offences.  In effect, it treats the applicant as having commenced to serve her four year sentence for those offences on the date on which that sentence was imposed, which was 16 October 1997.  The explanation for this is almost certainly to be found in the provisions of s. 157(3)(a) of the Penalties and Sentences Act. It provides for the case in which a court imposes another term of imprisonment on an offender who is already serving a term of imprisonment for an offence, which was what happened to the applicant on 16 October 1997.  In those circumstances s. 157(3)(a) requires that the court make a “fresh recommendation” for parole relating to the period of imprisonment that the offender must serve.  On that date, the period of imprisonment which the applicant was bound to serve was the term of four years imposed on that occasion which was ordered to be served cumulatively on the balance of the three year term, of which about two years remained on 16 October 1997.

In sentencing the applicant on that occasion, the learned judge did not, however, expressly make a fresh recommendation for parole in respect of the cumulative sentence to be served by her.  After imposing the four year term, and making it cumulative on the balance of the earlier term of imprisonment, he added the recommendation that she be considered for parole “after serving 18 months of this new sentence”.  That form of words appears on its face to relate the parole recommendation directly to the four year term rather than to the cumulative period of imprisonment under both terms that the applicant was bound to begin serving on that date.  But the Commission has evidently treated the parole recommendation made on that occasion as the “fresh recommendation” for parole, as in a sense it was, that is required by s. 157(3)(a).  The effect of doing so was to benefit the applicant by accelerating the recommended date for parole under the cumulative sentence to 16 April 1999, which is only 18 months after the imposition of the sentence on 16 October 1997.  The result may not have been precisely what the sentencing judge intended, but it is not something about which the applicant has cause for complaint.  In substance she will, if all goes well, become eligible for parole under sentences totalling seven years after having served only two and a half years, i.e., 12 months under the first sentence of three years and 18 months under the second sentence of four years.

All that remains to be considered whether the head sentence of four years is capable of being considered excessive either alone or in conjunction with the earlier sentence of three years.  Making it cumulative on the earlier sentence which the applicant was already serving was, for reasons mentioned in Cutajar (1995) 85 A.Crim.R. 280, said to be the preferable course in matters of this kind.  It then becomes a matter of working out the appropriate point in the cumulative sentence at which to make a recommendation (if any) for parole.  The latter sentence must not, when it is to be served cumulatively upon the earlier sentence, be such as to impose a “crushing” burden on the prisoner: Cutajar, at 281, 283.  Because the fresh recommendation for parole required by s. 157(3)(a) supersedes any recommendation for parole made on the earlier sentence, many judges prefer to fix a specific date in the future at which the prisoner is to be considered for parole, rather than to express it as a period of months or years after the cumulative sentence has begun to be served. Adopting that course has some advantages in terms of certainty and ready ascertainability; but it must always be borne in mind that the recommended parole date may not be fixed at a date that is earlier than the eligibility date for parole under the first sentence.  There is no power under s. 157(3(a) of the Penalties and Sentences Act 1992 to accelerate the parole date fixed under an earlier sentence: see Burton (1995) 83 A.Crim.R. 453.

As regards the head sentence of four years, the information before the court below strongly suggested that the applicant was in the business of supplying heroin.  For example, she told the undercover agent that when she was in gaol she had got letters from about 40 customers saying how annoyed they were.  She cannot, however, be punished on the basis that she was conducting a business of dealing in heroin because she was not charged with or convicted of trafficking in a dangerous drug.  However, each of the three offences involved supplying heroin to an undercover agent the total weight of which was 13.1 grams valued at $17,000. The subject three offences of supplying heroin did not involved trivial amounts.

The applicant, who is 37 years old and has a long record of drug convictions, has, as was submitted, a very unfortunate history.  She is an asthmatic and has been subjected to domestic violence.  According to a report by a psychologist she has low self-esteem, has a long history of depressive illness and other serious psychological problems.  The submission originally made on behalf of the applicant is that, instead of a four year cumulative sentence, there should have been a two and half year sentence with a recommendation for parole after having served nine months of that sentence.  If that were accepted, then the judge's head sentence would be reduced by 18 months and the recommendation for parole made nine months earlier than was ordered by the sentencing judge.

Some instruction may be gained by referring to a few recent comparable decisions of this Court relating to heroin supply.  In Truman (16 April 1997, C.A. No. 11 of 1997) there were eight counts of supply and the sentence was six years with a recommendation for parole after serving three and a half years.  It will be noted that the sentence was two years longer than the present and it was upheld on the basis that the offences had been committed while on parole.   There the applicant's personal circumstances were satisfactory, which is not the case here.  In Pascoe (22 July 1997, C.A. 184 of 1997) the quantities of heroin supplied were comparable with the present.  A total of six grams of heroin supplied at a price of $6,750.  The applicant was a heroin user who engaged in the transactions to support the habit.  He had a history of offences including some drug offences.  The sentence was eight years imprisonment.  It was said not to be light, but it was upheld in this Court.  A factor which is similar to the present case is that there were two sets of offences, of which the second was committed while on bail for the first.  The decision of this Court in Pascoe would make the present sentence appear light rather than heavy, were it not for the fact that Pascoe was convicted of trafficking.  However, when one looks at the volume of sales, it was not as great as the present.  The maximum penalty for supplying heroin of this quantity is 20 years and  for trafficking in heroin it is 25 years, i.e. the lower penalty is only one-fifth less than the higher.

In Dickinson (8 October 1997, C.A. No. 318 of 1997) there were two counts of supplying heroin, but no plea of guilty.  The amount involved was much less than the present and the sentence was two years and six months.  There were no previous supply convictions.  The applicant had been, but was not, a user at the time of the offence.  The sentence was upheld by this Court, which makes it difficult to support the suggestion that for the present offences only two years and six months imprisonment should have been imposed.  Then in Vidler, decided on the following day (9 October 1997, C.A. No. 329 of 1997) there was a conviction of trafficking in heroin and of counts of supply.  The applicant had only a minor criminal history and had not previously been sent to prison.  He was an HIV positive opiate-dependent person and he pleaded guilty.  He supplied drugs to an undercover police officer over a period of 12 days, but there was no evidence that he sold to anyone else. When approached initially to supply he refused, but later succumbed because of the opportunity to obtain some heroin for himself.  The five year head sentence was upheld, but this Court added a recommendation for consideration for parole after having served 18 months.  The sentence in that case tends to support what was done here.

A head sentence of four years for drug offences as serious and as persistent as these committed by the applicant cannot be regarded as excessive.  Having regard to the applicant’s extensive prior record of convictions for similar offences, that remains so even when account is taken of the fact that the subject sentence of four years was made cumulative upon the balance of the earlier three year term.  The applicant could scarcely expect to be treated more leniently for the further offences committed while on parole,  for which she was sentenced on 16 October 1997, than for those for which she was sentenced on 29 April 1996.  Her unhappy personal history attracts sympathetic consideration; but the recommendation for parole after 18 months goes at least as far as might be expected in giving effect to such personal factors, the more so because, in view of the parole eligibility date of 16 April 1999 calculated by the Commission, it will work out to be less than the judge may well have intended.  She may now expect to be considered for parole after serving only 18 months of an effective cumulative sentence amounting in aggregate to some four and a half years. That will mean, that she will in the end have served a total of only two and a half years out of sentences aggregating seven years imposed in respect of the two series of offences of which she has been convicted in the last two years.  She cannot reasonably expect to be treated more leniently than that.

The application for leave to appeal should be dismissed.