Attorney-General v McCormick[1999] QCA 354

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 205 of 1999

Brisbane

THE QUEEN

v

DANIEL JAMES McCORMICK  Respondent

EX PARTE: ATTORNEY-GENERAL OF QUEENSLAND  Appellant

McPherson JA

Thomas JA

Derrington J

Judgment delivered 27 August 1999

Judgment of the Court

APPEAL ALLOWED TO THE EXTENT OF:

(A)VARYING THE SENTENCE IMPOSED IN RESPECT OF COUNT 4 IN THE INDICTMENT BY OMITTING THE EXISTING RECOMMENDATION FOR PAROLE ON 11 JANUARY 2000; AND

(B)SUBSTITUTING A RECOMMENDATION THAT THE RESPONDENT BE ELIGIBLE TO BE CONSIDERED FOR RELEASE ON PAROLE AFTER SERVING 9 MONTHS OF THE SENTENCE IMPOSED IN RESPECT OF THE OFFENCE IN THAT COUNT.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 27 August 1999

1. This is an appeal by the Attorney-General against the inadequacy of sentences imposed in the District Court on 21 May 1999 in respect of offences to which the respondent Daniel James McCormick pleaded guilty on an ex officio indictment.

2. He was sentenced to imprisonment for three years in respect of each of the four offences ("the new offences") grouped as follows:

3. The sentence of imprisonment for three years imposed in respect of the armed robbery (count 4) was ordered to be served cumulatively upon a sentence of imprisonment for 15 months which had been imposed earlier on 25 May 1998 for offences ("the old offences") committed on or before that date. The other two three-year sentences for the new offences in counts 1 to 3 were ordered to be served concurrently with the sentences for those old offences. At the same time, a fresh recommendation was made that the respondent be eligible for parole for all offences on 11 January 2000. It is this recommendation that is the principal target of the Attorney's appeal in this case.

4. The circumstances of the offence can be summarised as follows. As to the two stealing offences, at some time between 1 January 1999 and 24 February 1999, the respondent came into possession of a set of Telstra keys which could be used to access the money compartment of public telephones.  He told police he found the keys in a Mt Isa telephone booth, and that he used the keys on four occasions that night and the next day to steal approximately $200 from various public telephones. He was found in possession of the keys by police in Townsville on 24 February 1999 and they were then seized. These two charges related to stealing the keys and the money in group 1 above.

5. On 11 April 1999 the respondent broke into an aboriginal hostel by opening a closed but unlocked window. In the course of three trips back and forth, he stole and transported to his residence a computer hard drive, a monitor, a printer, a fax machine and a photocopier. The property has never been recovered. He said that he swapped it for a supply of amphetamines from a person whom he declined to identify. The value of the property stolen is not specified, but it could not have been negligible. These offences are those in group 2 above.

6. With respect to the armed robbery in group 3, at approximately 9.20 pm on 12 April 1999, the respondent entered a Mt Isa convenience store having first covered his head with either a beanie or a shirt. He was carrying a knife. A 14 year old girl was working alone in the store at the time. He flourished the knife and ordered her to give him money from the register. She gave him approximately $300 according to her estimate, or approximately $500 according to his estimate. After ordering her to check under the register drawer for more money, he directed her to lie on the floor and he then ran off. When he arrived home, he burned his distinctive shorts to avoid being identified.

7. On April 16 1999, the respondent went voluntarily to the police station where he confessed to the robbery saying he did not want it hanging over his head.  When interviewed, he said he had walked past the store, seen the girl, wrapped a shirt around his head, taken out the knife he had brought from his residence, and gone in. He knew the girl would have felt threatened, but said he had no intention of harming her.  It does not appear that any of the money was ever recovered. While at the police station he also admitted to the other new offences the subject of this appeal.

8. The personal circumstances of the respondent are that he was born on 31 May 1980, and so is now 19 years old. He was 18 when the new offences were committed. He has an extensive criminal history occupying some four pages of appeal record. By way of summary, the prior offences cover a period from October 1997 to April 1999.  They include assault occasioning bodily harm, multiple offences of stealing, break and enter, and unlawful use of a motor vehicle; some street offences and breaches of community service orders. At sentence, his counsel referred to his drug addiction, genuine remorse, unhappy childhood, his youth, the short time span of his criminal history, and its coincidence with his drug and alcohol problems, together with his wish to rehabilitate himself.

9. As already mentioned he had previously been sentenced on 25 May 1998 to imprisonment for 15 months with a recommendation for parole after four months. This sentence was in respect of what have here been called the old offences. The new offences, committed in 1999, with which we are concerned on this appeal, were committed by the respondent while he was on parole for the old offences. Approaching these events in chronological sequence, the respondent's sentence imposed on 25 May 1998 of imprisonment for 15 months with a parole recommendation after four months led to his release on parole on 17 September 1998. His commission of the new offences resulted in suspension of his parole on 9 April 1999 and his return to custody on 16 April 1999. His sentencing on 21 May 1999 to imprisonment in respect of the new offences meant that under s 187(1) of the Corrective Services Act 1988 his parole was automatically cancelled, and under s 190(1) of that Act he became liable to serve the unserved balance of the sentence of 15 months imprisonment imposed on 25 May 1998 for the old offences. Once that happened, his full time release date in respect of that sentence then became 10 March 2000.

10. In sentencing for the new offences, his Honour recommended that the respondent be considered for parole on 11 January 2000. That fell short by some two months of the full time release date of 10 March 2000 under the sentence imposed for the old offences. Moreover, the new offences included a conviction for robbery which, under s 156A(1) of the Penalties and Sentences Act 1992, is a Schedule offence; and, because it had been committed while the respondent was on parole for the old offences, s 156A(2) required that the sentence imposed in respect of it be served cumulatively on the sentence for those offences.

11. His Honour was nevertheless persuaded that he was bound by s 157(3) of that Act to make a fresh recommendation for parole. In that particular, we do not consider that his Honour was correct. It is true that in theory there remained a notional recommendation for parole dating back to the sentence imposed in May 1998 for the old offences; but it was a recommendation which had exhausted itself and ceased to operate once the respondent's parole was cancelled by force of s 187(1) of the Corrective Services Act upon his being sentenced to another term of imprisonment during the parole period. The bare recommendation cannot be regarded as surviving that event. The consequence is that s 157(3) had no further application to it. It applies only if, to use the language of this Court in R v Doyle [1996] 1 Qd R 407, 410, there is a "current" recommendation for parole attaching to the earlier sentence; or, as it was described in Burton (1995) 83 A Crim R 453, 455, an "existing" recommendation for parole. At the time of sentencing for the new offences, there was no such current or existing recommendation, and eligibility for release on parole could only be recommended under s 157(2) in relation to the respondent's fresh term of imprisonment: see Cutajar (1995) 85 A Crim R 280, 282. For completeness, it should be perhaps added that in our view nothing that was said in R v Riley (CA 23/1999; 6 Aug 1999; [1999] QCA 128) affects this conclusion.

12. The practical outcome of or after the sentence hearing on 21 May 1999 was therefore as follows. The cumulative head sentence for both the old and the new offences totalled 4¼ years (15 months plus 3 years). The specific recommendation made by the learned sentencing judge was that the respondent be eligible for parole on 11 January 2000, whereas, without that recommendation, the respondent's full time release date under the sentence for the old offences would have been 10 March 2000. The Attorney therefore has a justifiable cause for complaint about the recommendation for parole, which, as we have said, was not authorised by s 157(3) of the Penalties and Sentences Act. Instead, counsel for the Attorney submitted that the respondent should be recommended for parole after serving 9 months of the sentences imposed for the new offences.

13. Counsel for the respondent on this appeal complained that the respondent would then be in the position of undergoing a cumulative head sentence of 4¼ years with the benefit of a recommendation that would operate only after 2 years, or only marginally less than half way through his cumulative term of imprisonment. This, it was submitted, would fail to reflect the significance of his action in volunteering to the police his guilt in respect of the new offences. But that is to overlook the fact that he committed the new offences while on parole, and that it is s 187(1) of the Act of 1988 that operates automatically to cancel his parole, as well as that s 156A(2) of the 1982 Act dictated that his sentence for the later armed robbery be made cumulative. It is not the function of the courts to strive to circumvent the effects of these statutory provisions by making a specially early parole recommendation: cf R v Booth (CA 338/1998, 30 Mar 1999; [1999] QCA 100); R v Crossley (CA 477/1998, 18 June 1999; [1999] QCA 223). It is nevertheless considerably to the respondent's credit that he did volunteer to the police his responsibility for the new offences. It suggests that he is making a genuine attempt at rehabilitation. It does not follow that he should suffer no penalty at all for the additional new offences some, if not all, of which were of a serious nature. The robbery, in particular, is an offence of a kind which commonly attracts a sentence more severe than the three years imposed in the present instance.

14. In all the circumstances, including the respondent's considerable past criminal record and the fact that the new offences were committed while on parole, we consider that the submission on behalf of the Attorney as regards parole is a modest and appropriate sentencing response to the new offences.

15. The appeal is allowed to the extent of varying the sentence imposed in respect of count 4 in the indictment by omitting the existing recommendation for parole on 11 January 2000, and substituting a recommendation that the respondent be eligible to be considered for release on parole after serving 9 months of the sentence imposed in respect of the offence in that count.