R v Skedgwell[1998] QCA 93

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 434 of 1997

Brisbane

[R. v. Skedgwell]

THE QUEEN

v.

ROSS MOANA SKEDGWELL

(Applicant) Appellant

McPherson J.A.

Davies J.A.

Shepherdson J.

Judgment delivered 15 May 1998

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.  APPEAL ALLOWED TO THE EXTENT OF VARYING THE SENTENCE OF IMPRISONMENT FOR 5 YEARS IMPOSED IN RESPECT OF COUNT 1 IN THE INDICTMENT BY ADDING A RECOMMENDATION THAT THE APPLICANT BE CONSIDERED FOR PAROLE AFTER SERVING 2 YEARS OF THAT SENTENCE.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 15 May 1998

The applicant seeks leave to appeal against sentence which on 11 November 1997 was imposed in the District Court for (1) armed robbery; and (2) breaking, entering and stealing. The sentences for those two offences, to which he pleaded guilty, were respectively imprisonment for 5 years, and imprisonment for two years, to be served concurrently.

The first offence was committed on the evening of 28 October 1996, when the applicant, who was armed with a knife, entered the foyer of a city hotel, produced a handgun, and said “this is a hold-up”.  He pointed the gun at the hotel porter and told him to lie on the floor, and demanded that the receptionist empty the contents of the till (about $700) into a plastic bag.  He required the porter to hand over his wallet; but the porter said he did not have it with him, after which the applicant left taking the money and threatening to shoot anyone who followed.  Despite the threat, he was followed, and was later identified from handwriting on a note he left behind, from tattoos, and from a photo board.  On 11 March 1997, while on bail for the first offence, the applicant broke into a hardware store and stole a number of paint brushes. The property was later recovered but, in breaking in, damage was done to a window of the shop.

The effective sentence of 5 years for these two offences is plainly not excessive, having regard particularly to the use of the firearm to commit the robbery offence at a place where hotel staff and patrons were, or were likely to be, present.  The receptionist has suffered lasting adverse effects from her experience on this occasion.  In addition, the applicant, who is some 50 years of age, has a lengthy record of prior criminal convictions sustained in places as far afield as New Zealand, New South Wales, and Queensland, although, before the subject two sentences were imposed, six months was the longest term of imprisonment he had attracted.  He was on probation at the time of the first offence, and, at the time of the second, he was on bail for the robbery charge then pending against him.  He was affected by alcohol and methadone at the time of the robbery, and is said to be a drug addict, although he has been drug‑free while in custody on this occasion.

The learned sentencing judge calculated the period of pre-sentence custody as 245 days, which was the number of days between the date of his arrest on 11 March 1997 on the second offence (when his bail for the first offence was revoked), and the sentence hearing on 11 November 1997.  However, his Honour declared it to be time already served under the two year term imposed for the second offence, with the result, as he observed, that the prisoner gained no benefit from it in relation to the five year robbery sentence with which the two year sentence was made concurrent.

The point principally argued on the hearing of the application in this Court was the correctness of his Honour’s conclusion on that aspect of the matter.  Section 161(1) of the Penalties and Sentences Act 1992, to which the learned judge referred, is in terms as follows:

“161. Time held in presentence custody to be deducted. (1) If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence and for no other reason must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders.”

Before s. 161(1) was enacted, it was practice in sentencing to take account of a period of pre-sentence custody as going to some extent in reduction or mitigation of the penalty being imposed.  Sometimes this was done by reducing the head sentence; on other occasions by accelerating the recommended date for parole. There was some debate whether, when the first of these methods was adopted, the allowance for the period of pre-sentence custody should not be doubled.  That was because, if that period of custody had been served as part of the sentence rather than before it was imposed, the prisoner would, to that extent, have been closer to the statutory half-way mark at which he would or could first be considered for parole.  On that approach, a day in custody before sentencing was for some purposes treated as the equivalent of two days after sentence.  See, generally, R. v. Leeth [1991] 1 Qd.R. 391; R. v. Marshall [1993] 2 Qd.R. 307; R. v. Wishart & Jenkins [1994] 2 Qd.R. 421, 428.

Section 161(1) did not, at least directly or expressly, abrogate that discretion or practice exercised in sentencing offenders.  What it did and does is to make it mandatory in defined circumstances for an offender who is being sentenced to be given credit under that sentence for time already spent in custody.  Section 161(1) requires that “any time that the offender was held in custody ... must be taken to be imprisonment already served under the sentence, unless the court otherwise orders”.                The statutory scheme introduced by s. 161(1) is elaborated in various ways in ss. 161(2) and 161(4), which it is not necessary to refer to here in detail.  What is important for present purposes is that the operation of s. 161(1) is made to depend on the fact that the offender has been held in custody in relation to proceedings for the offence in question “and for no other reason”.  It was because, as his Honour saw it in the present case, the applicant here was held in custody from 11 March 1997 in relation to proceedings for the second offence committed on that date, and for no other reason, that he felt bound to credit the period of 245 days of pre-sentence custody to the sentence for the second offence rather than to the sentence on the first offence or even both offences.

Whether the period for which the applicant was held in custody was “for no other reason” than its relation to proceedings for the second offence was, on the application before this Court, not the subject of detailed submissions.  The question to be decided is whether it was correct for his Honour to assume, as we consider he did, that, in sentencing the applicant, credit could be allowed for that period only in the manner and to the extent specifically addressed in s. 161(1).  We do not think it was.  In R. v. Jones [1998] 1 Qd. R. 672, this Court held that what was described there as the former “untrammelled discretion”, which had existed before the Penalties and Sentences Act, had not been reproduced by ss. 158 and 161 of the Act; but that it was retained and exercised when the court made an order under the power to “otherwise order” conferred by s. 161(1).  That is a possible basis on which a different order might have been justified in the present case.  But s. 161(1) does not, on any view of its terms, appear to have been intended as an exhaustive statement or complete code of the court’s power to take account of a period of pre-sentence custody when arriving at an appropriate sentence.  In the circumstances specified in s. 161(1), the duty to give credit for pre-sentence custody is mandatory, and the manner of doing so is prescribed by the section; but it does not limit or exclude the general sentencing discretion to consider a period of such custody as a factor which may operate in mitigation, whether by reducing the head sentence, or accelerating the date for consideration for parole, or otherwise.

His Honour did not, on the view we take of his remarks in the present case, approach the sentencing of the applicant in that broad fashion.  To that extent, the sentencing discretion miscarried in this instance.  We consider that justice would be done to the applicant if some allowance were to be made for the period of 245 days of pre-sentence custody which he underwent.  In one sense, the reason for his being held in custody was his commission of the second offence on 11 March 1997; but it is difficult to believe that he would not have been granted bail for that comparatively less serious offence if he had not also committed and been charged with the earlier and much more serious offence of armed robbery on 28 October 1996.  To some extent, therefore, it may be that both offences, or the charges in respect of them, jointly contributed to his detention in custody for the period of 245 days; if so, it is probable that the first offence was the major contributing factor.  If the sequence in which the two offences had been committed had been reversed, the result in the particular circumstances of this case would no doubt have been different under s. 161(1).

The fact that, by committing the first offence, the applicant breached the terms of an existing probation order in force at that time, and also that, by committing the second offence, he breached the condition of his bail on the first offence, are matters that raise considerations of an entirely different kind.  Those contraventions may themselves constitute distinct offences for which he may be, or perhaps has already been, punished; but they do not affect his claim to have the period of pre-sentence custody considered in his favour as a relevant factor in the general sentencing discretion exercisable on this occasion.

When all matters are considered, we would regard it as appropriate to allocate credit for the period of pre-sentence custody roughly in proportion to the contribution made by the sentence on each offence to the overall effective head sentence of 5 years in this case.  On one view, that is capable of being achieved by ascribing approximately three-fifths of that period to the sentence on the first charge and the balance to the sentence on the second charge.  On this footing, justice will be done by recommending that the applicant be considered for parole when he has served two years of the overall head sentence of five years that was imposed upon him.  For the applicant Mr Hunter of counsel argued for a parole recommendation at 22 months; and the result arrived at here of 24 months does not depart much from that submission.

Adopting that particular method in the present case is not intended to bind the exercise of the sentencing discretion of courts to precisely the same course in future cases.  It is not a rule or principle to be applied mechanically; but, for a number of reasons, it is desirable that, in making allowances for pre-sentence custody in matters falling outside the literal terms of s. 161(1), the sentencing court or judge should make it plain in the sentencing remarks whether, and to what extent and in what manner, such an allowance is being made on account of a period of that custody.

The application and appeal will be allowed to the extent of varying the sentence of imprisonment for 5 years imposed in respect of count 1 in the indictment by adding a recommendation that the applicant be considered for parole after he has served two years of that sentence.  The declaration here in relation to the sentence on count 2 was made in deference to the mandatory provisions of s. 161(3) of the Act.  As we see the matter, it cannot have any practical effect on the sentence that will be served in this case, and there is therefore no reason why it should be disturbed.  The period of 245 days of pre-sentence custody has, however, as these reasons show, been allowed for in the recommendation for parole which has now been added to the sentence below.