The Queen v Izatt[1999] QCA 290

THE CHIEF JUSTICE:  The applicant pleaded guilty on

17 February 1999 to three counts of supplying heroin and was sentenced to concurrent terms of two years imprisonment.  Counsel had agreed, before the learned sentencing Judge, on a range of two to four years.  The Judge selected two years because of the pleas of guilty and some cooperation with the police and indicated that he believed he was proceeding leniently towards the applicant with a view to fostering some hope for his future and that of his family.

When the applicant committed the first of these three offences on 10 April 1996 he was only one week into a period of home detention.  That related to a period of eight years imprisonment imposed upon re-sentencing (following legislative provision) for drug trafficking in relation to a life term imposed originally on 14 March 1989.

The eight year term was to commence from that date - 14 March 1989 - with a recommendation for parole after two and a half years.  When released from actual custody, in the course of terms of imprisonment, the applicant has habitually reoffended.  By the time he fell to be sentenced on 17 February 1999 for the instant offences his full-time release date was October 2001, allowing for remissions 15 October 2000, with eligibility for parole on 15 November 1998.

The learned Judge ordered that the applicant serve the two years imprisonment for the instant offences cumulatively upon the terms then being served.  There is and can be no complaint about that.  Neither is there nor can there be complaint about the two years itself which was, on any view, moderate, as the Judge emphasised.

It was necessary for the Judge to make a fresh recommendation for parole "relating to the period of imprisonment that the offender must serve" in terms of section 157 3a of the Penalties and Sentences Act and that, in terms of subsection 5b, was to "start on the date it was made".  As subsection 5a provides, the fresh recommendation revokes earlier extant recommendations.  As intended by the provision in subsection 5b that the new recommendation "start" when made, it becomes thenceforth the newly operative recommendation, even though it ordinarily relates to a date in the future.  As at the time of sentencing, 15 November 1998 was the operative date for eligibility for parole.  Counsel appeared to accept as unrealistic the prospect the applicant might be released on parole in relation to the term then being served, bearing in mind his conviction for trafficking in March 1989, his conviction in January 1994 for possession of heroin in November 1993, and his conviction for these offences, committed between April and July 1996.

The Judge took the view that, with relation to these offences, the applicant should be eligible for parole 12 months after commencing to serve these two year terms.  And he then specifically averted to the possibility of the applicant's being granted remissions in respect of the earlier imprisonment.

If his notional release, allowing for those likely remissions, would involve the commencement of his actual incarceration for these offences at a date earlier than otherwise, then eligibility for parole should, he considered, arise 12 months from that date; that is 12 months from the date the applicant would, but for these offences, actually be released.

The Judge put it in these terms:

"I am going to recommend that you be considered for parole 12 months after the period when you would normally be released in respect of the sentences which you are currently serving and that they be no later than 12 months from the actual commencement of this sentence, whichever is the earlier, of course.

By describing it that way I take into account that you are likely to be released because of remissions and, lest that earlier release should not be regarded as the completion of your sentence I word it in that way so that the period to be calculated for your eligibility to be considered for parole will commence at the earlier date if there is any difference.

And for the sake of being more definite, in accordance with the requirements of the section, I make it clear that that is to be no later than the date of one year after the actual commencement of this cumulative sentence."

His Honour having expressed the matter that way, both counsel confirmed in Court that they understood his intent and they sought no further elaboration.  The specified ground of the application is that the learned Judge "erred in ordering that the non parole period commence at a date in the future, in contravention of Section 157 5b".

The Judge has provided a basis for calculating eligibility for parole, rather than specifying a definite date.  In this case that was a reasonable course to take, allowing for uncertainty as to when the applicant might be released and acknowledging His Honour's reasonable belief that the applicant should actually have to serve one half of the two-year terms he considered moderate, if not lenient.

Specifying a basis for calculation rather than a definite date has been apparently countenanced by the Court of Appeal in Southey (1993) 70 Criminal Reports 282 and Bealing, Court of Appeal 542 of 1996, judgment given 3 March 1997.  The section does not say in terms that a definite date need be specified.  What it requires is a recommendation for parole "relating to the period of imprisonment that the offender must serve".

I consider that requirement was met here.  Further, section 157 5b was not contravened.  The new recommendation was operative and, in that sense, "started" from the date the learned Judge made it; that is the date of sentencing on

17 February 1999.  It then became the operative recommendation revoking that previously applicable.

It was separately submitted for the applicant that the learned Judge's approach unduly disadvantaged the applicant by deferring his entitlement to apply for parole until 15 October 2001, being the full time release date under the sentences then being served or such other date as marked the conclusion of the prior sentences.  As it was put in submissions:

"At the date of the present sentence the applicant had a present statutory entitlement to apply for parole.  He had served some five years nine months of the eight year ... sentence which had been ordered against him.  The learned Judge's order has deferred that eligibility until 15 October 2001."

The date 15 October 2001 is arrived at by adding to the applicant's release date allowing for remissions, which is

15 October 2000, the 12 month period specified by His Honour.  The Judge took this approach because he considered it fanciful to acknowledge any prospect of release on parole under the earlier sentences but was concerned to respect the applicant's likely entitlement to remissions.

I see nothing wrong with this approach, which was fair to the applicant and met the justice of the case, allowing for the applicant's past history and the moderation involved in the selection of the two year terms.  I would refuse the application.

BYRNE J:  I agree.

WHITE J:  I agree.

THE CHIEF JUSTICE:  The application is refused.