The Queen v Karger[1999] QCA 433

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 162 of 1999

Brisbane

[R v Karger]

THE QUEEN

v

COLIN JOHN KARGER

(Applicant) Appellant

McPherson JA

Byrne J

White J

Judgment delivered 19 October 1999

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED TO THE EXTENT OF SETTING ASIDE THE RECOMMENDATION FOR PAROLE AND, IN LIEU THEREOF, ORDERING THAT THE APPLICANT BE ELIGIBLE FOR PAROLE ON 6 MAY 2001.

1. THE COURT: On 19 April this year, the applicant was convicted on his pleas of guilty to 10 supplies of dangerous drugs. Nine of the offences related to heroin; the other concerned methylamphetamine. Concurrent sentences of three years’ imprisonment were imposed. There was an accompanying recommendation that the applicant be eligible for parole after serving 18 months of the sentences. The sentences were ordered to be served cumulatively upon other sentences the applicant was then serving.

2. The applicant, who was aged 29 when the offences were committed, sold the drugs to an undercover police officer during about six weeks. $3,285 changed hands. The total quantity of pure heroin involved was 1.143 grams. One gram of methylamphetamine was supplied.  When the offences were committed, the applicant was on parole for other offences. He had prior convictions for a large number of offences, including old drug offences.

3. Appropriately enough in the circumstances, it is not suggested that the head sentence is excessive; nor is it said that the judge erred in making the sentences cumulative upon the sentences the applicant was serving when dealt with: cf R v Clemens CA 404 of 1997, 17 April 1998. Instead, the case concerns the parole recommendation. On account of it, the sentences are said to be manifestly excessive. To understand the submission, it is necessary to consider the applicant’s imprisonment history.

4. On 12 May 1995, the applicant was sentenced to imprisonment for offences of stealing and false pretences. Two sets of two year sentences were ordered to be served cumulatively. A recommendation was made for parole eligibility after 18 months of those four years had been served. Time spent in pre-sentence custody from 11 October 1994 was declared to be imprisonment already served under the sentences.

5. On 30 June 1995, a sentence of one month’s imprisonment was imposed for breach of a bail undertaking.

6. On 1 May 1996, the applicant was granted parole. His parole was cancelled on 3 October 1996, apparently as a consequence of his arrest on other charges. He was returned to custody on 12 March 1998 to serve the balance of the four years sentences imposed in May 1995. After allowing for the impact on remissions entitlement occasioned by cancellation of parole, it was not until 5 May 1999 that the applicant became entitled to release in respect of the four year sentences.

7. In the meantime, on 21 September 1998, further sentences of imprisonment were imposed. These sentences, each of one year, were to be served cumulatively upon other sentences then being served.

8. On 19 April 1999, the sentences with which this application is concerned were imposed.

9. On 6 May 1999, the one year sentence imposed on 21 September 1998 commenced. With remissions, that sentence will expire on 5 January 2000. The following day, the applicant is to commence to serve the subject sentences. With remissions, these will terminate on 3 January 2002. Then he starts the one month sentence for the bail offence: see s 122(2) Corrective Services Act 1988; and s 33(4)(c) Bail Act 1980.

10. If the applicant becomes eligible for parole 18 months from the commencement of the subject sentences, he will be so eligible on 6 July 2001.

11. The parole recommendation at the half way point was made, it seems, because the judge considered that he was obliged by statute to fix a parole eligibility date. The sentence which was imposed on 21 September 1998 had been accompanied by a recommendation for parole eligibility on 26 March 1999. As all earlier recommendations for parole had expired when the subject sentences were imposed, no new recommendation for parole actually was required by s 157(3) of the Penalties and Sentences Act 1992. But the case which is authority for that proposition, R v McCormick; ex parte Attorney-General of Queensland CA No 205 of 1999, 27 August 1999; [1999] QCA 354, had not been decided when the subject sentences were imposed.

12. In any event, it is apparent from the record of proceedings that the judge intended that the applicant be eligible for parole half way through the three year sentences. Had that intention been reflected in the orders, 6 May 2001 would have been selected as the date: the midway point of the four years cumulative sentences to be served from 6 May this year. Unfortunately, the endorsement on the indictment did not accord with the judge’s intentions, for it recorded a “recommendation for parole at the end of 18 mths in prison”, which, not surprisingly, has been understood as meaning 18 months from the day the sentences were imposed. That mistake was repeated in the calendar given to the Corrective Services Commission. 

13. It was submitted for the applicant that the parole recommendation is erroneous in another respect. The contention is founded on the interpretation of s 166(1) of the Corrective Services Act adopted in R v Pepper & Cornwell CA Nos 366 and 367 of 1998, 2 March 1999; [1999] QCA 47. Had no parole recommendation been made, by s 166(1), it was said, the appellant would be eligible for release on parole after serving half of all the sentences of imprisonment being served and to be served on 19 April 1999. The aggregate of these sentences is eight years and one month. Thus, without any recommendation, the applicant would be required to serve four years and two weeks imprisonment before being eligible for parole. As at 19 April 1999, the applicant had served two years and eight and a half months. On this approach he would become eligible for parole in August 2000, which is considerably earlier than the date the judge intended. Such an approach, however, ignores the cancellation of parole and its consequences. The judge was concerned to fix an appropriate sentence. Although that task may have been informed by a consideration of the ramifications of s 166, the statute did not require the judge to ignore those considerations that favoured the choice of a different eligibility date. And here, especially in view of the cancellation of earlier parole, the judge was entitled to select a date later than that for which s 166(1) would otherwise have provided.

14. Then it was said that the selection of a parole eligibility date at about the middle of 2001 resulted in a “crushing” sentence. This does not, however, appear to be so. Making due allowance for the resource savings associated with the pleas of guilty to an ex officio indictment, having regard to the serious nature of the offence and the applicant’s criminal history, the sentence imposed, including the intended parole eligibility date, was not beyond the range of a sound sentencing discretion.

15. There is an advantage in nominating a parole eligibility date and, unlike the judge who lacked the relevant information, we have been provided with the applicant’s sentence calculations by Mr R Martin for the respondent. We are therefore in a position to substitute for the recommendation that was made a recommendation which nominates a particular date. The material factors suggest that that date should be 6 May 2001.

16. The application should therefore be granted and the appeal allowed to the extent of setting aside the recommendation for parole and, in lieu thereof, ordering that the applicant be eligible for parole on 6 May 2001.