R v Pepper and Cornwell[1999] QCA 47

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 366 of 1998

C.A. No. 367 of 1998

Brisbane

[R v. Pepper & Cornwell]

THE QUEEN

v.

SUNRISE ADRY PEPPER

and JODIE LEANNE CORNWELL

(Applicants)

Pincus J.A.

Davies J.A.

Mackenzie J.

Judgment delivered 2 March 1999

Judgment of the Court

1. SENTENCES IMPOSED ON EACH APPLICANT FOR THE OFFENCES COMMITTED ON 27 JULY 1997 ARE ALL TO BE SERVED CONCURRENTLY.

2. AS TO CORNWELL, APPLICATION FOR LEAVE TO APPEAL IS GRANTED AND APPEAL ALLOWED TO THE EXTENT OF MAKING THE DATE OF ELIGIBILITY FOR PAROLE 31 DECEMBER 1999.

3. SENTENCES OTHERWISE CONFIRMED.

CATCHWORDS: CRIMINAL LAW - sentence - applicants convicted of assault occasioning bodily harm, deprivation of liberty and attempted escape - whether s. 156A Penalties and Sentences Act 1992 requires every sentence imposed for a schedule offence to be served cumulatively with every other sentence imposed on the same offender, either earlier or on the same occasion - relationship between definition of "term of imprisonment" in s. 10 Corrective Services Act 1988 and s. 166(1)(d) of the same Act.

Walton (C.A. No. 338 of 1997, 18 November 1997)

Corrective Services Act 1988,  ss. 10, 166(1)(d)

Penalties and Sentences Act 1992, s. 156A

Counsel: Mr B Ryan (Solicitor) for the applicants.

Mr M Byrne Q.C. for the respondent.

Solicitors: Ryan and Bosscher for the applicants.

Director of Public Prosecutions (Queensland) for the respondent.

Hearing Date: 3 February 1999.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 2/03/1999

1. These two applications for leave to appeal against sentence relate principally to a joint attempt made by the applicants, women now 26 years of age, to escape from the Townsville Correctional Centre on 27 July 1997, in circumstances explained below.  In September 1998, they were both sentenced in the District Court for offences relating to that escape attempt and the applicant Pepper was also sentenced for other, earlier, offences.  According to the submissions made to us, the total of the sentences imposed on Pepper was 4 years and 4 months, but it is not clear, from the judge's remarks on sentencing, whether that is so.  A similar doubt arises with respect to the sentences imposed on Cornwell.

2. The judge sentenced Pepper to a total of 10 months imprisonment in respect of offences other than those committed at the time of the attempted escape in July 1997.  Having dealt with those other offences, the judge came to discuss the sentences to be imposed on both applicants with respect to the escape offences.  His Honour said he had "examined the circumstances surrounding the commission of these offences, the assault occasioning bodily harm, the deprivation of liberty and your attempted escape".  Although the judge referred to the assault occasioning bodily harm and the deprivation of liberty, in the singular, each of the applicants in fact pleaded guilty to two counts of assault occasioning bodily harm and two counts of deprivation of liberty.  No doubt when his Honour mentioned the assault occasioning bodily harm and the deprivation of liberty he intended to refer, as to each applicant, to both the assaults and both the deprivations of liberty.  The judge went on to mention and to reject the Crown's submission as to the imprisonment which should be imposed and then said "in all the circumstances of this particular case I think a period of 2½ years in relation to these matters is appropriate".  In the context , "these matters" seems to be a reference back to the offences last discussed by the judge being "the assault occasioning bodily harm, the deprivation of liberty and your attempted escape".  That is, at that stage, one would have thought that his Honour intended to impose a total of 2½ years imprisonment in respect of all five of the gaol offences including the attempted escape.  But then his Honour went on:  "So each of you is sentenced in relation to the assault occasioning bodily harm and deprivation of liberty, but in relation to the attempted escape you are sentenced to 12 months imprisonment, for the other two, in relation to those 2½  years imprisonment.  Those periods are cumulative".  This later passage has no doubt prompted the submission that the judge intended to impose a total of 3½ years imprisonment, not 2½  as earlier stated.

3. Our impression from reading the reasons as a whole is that his Honour, when he said "Those periods are cumulative", intended to make the 27 July 1997 offences, as a group, cumulative upon the offences committed at earlier dates.  This impression is strengthened by the following two sentences which read, "So far as you are concerned, Cornwell, it is cumulative upon the sentence you are presently serving.  So far as you are concerned, Pepper, it is cumulative upon those sentences which I pronounced shortly before in relation to the other matters you pleaded guilty on today";  that is, what we believe the judge wished to do was to make all those five sentences concurrent with one another, but as a group cumulative upon sentences imposed in respect of the earlier offences. 

4. Attention was drawn, before us, to the fact that the endorsements on the indictments were to the effect that the 2½ year terms were to be concurrent with the 12 month term;  while not conclusive, this is a strong indication of the judge's true intention.  In our view, the proper construction of his Honour's sentencing order accords with these endorsements, and the submission that the escape offences attracted sentences totalling 3½ years must be rejected;  the true total is 2½ years.

5. The matter is complicated by the fact that the offences in question were committed in July 1997, shortly after there came into force the amendment of the Penalties and Sentences Act 1992, effective from 1 July 1997.  Those provisions included s. 156A, which reads as follows:

"(1)This section applies if an offender-

(a)is convicted of an offence-

1. against a provision mentioned in the schedule;  or

2. of counselling or procuring the commission of, or attempting or conspiring to commit, an offence against a provision mentioned in the schedule;  and

2. committed the offence while-

1. a prisoner serving a term of imprisonment;  or

2. released on parole under the Corrective Services Act 1988;  or

3. on leave of absence, from a term of imprisonment, granted under the Corrective Services Act 1988;  or

4. serving a period of home detention under the Corrective Services Act 1988;  or

5. at large after escaping from lawful custody under a sentence of imprisonment.

(2) A sentence of imprisonment imposed for the offence must be ordered to be served cumulatively with any other term of imprisonment the offender is liable to serve."

The schedule includes as the fourth item s. 142 of the Criminal Code, ("Escape by persons in Lawful Custody") and one of the offences charged against each applicant was attempting to escape from lawful custody.  Section 156A(1)(a)(ii) covers attempts to commit an offence against the provision mentioned in the schedule, so that by force of s. 156A(2) the sentence imposed for the offence of attempting to escape from lawful custody had to be ordered to be served cumulatively "with any other term of imprisonment the offender is liable to serve".  Another item in the schedule is No. 35, which covers s. 339 of the Code under which each of the applicants was charged with the two assault offences.  The other offences committed at the same time were two offences of deprivation of liberty, under s. 355 of the Code which is not included in the schedule.

6. A possible interpretation of s. 156A of the Penalties and Sentences Act 1992 is that it requires every sentence imposed for a schedule  offence to be served cumulatively with every sentence which is imposed on the same offender, either earlier or on the same occasion.  If that were so, then the proper order would have been to make each of the three relevant offences, namely the two assaults and the attempt to escape, carry a sentence cumulative upon the other two relevant offences, as well as being cumulative upon the two deprivations of liberty;  that, the judge plainly did not do.

7. But what do the words "is liable" mean, in the expression "cumulatively with any other term of imprisonment the offender is liable to serve"?  Use of the present tense may convey the idea that one considers the situation at the very moment when the judge pronounces the relevant sentence.  But that would lead to some anomalous results.  First, if the judge imposed the same sentence by the same order on schedule offences and non‑schedule offences, s. 156A would have no operation;  that would be so, in the instant case, in relation to Cornwell, if the judge had simply imposed a sentence of 2½ years in respect of all the offences.  Secondly, the construction we are discussing would make the operation of s. 156A dependent on the sequence in which sentences happened, on the same occasion, to be pronounced.  If there were two offences, one in the schedule and one not, s. 156A would operate or not operate depending on the sequence in which the judge dealt with them. 

8. Another reading, somewhat broader and producing a more rational result, is one which treats the use of the present tense "is" as referring to the situation at the beginning of the sentencing process.  That would mean that s. 156A would apply only in respect of sentences imposed on a previous occasion.

9. The choice, to our minds, is one between these alternatives.  We favour the latter, on the ground that it is open on the language used and avoids making the operation of the section depend upon fortuitous circumstances relating to the way in which the orders are pronounced.  The result is that the judge was only obliged to make the schedule offences cumulative upon offences already being served at the inception of the sentencing process; that obligation was fulfilled, in that Cornwell's sentences imposed on 16 September 1998 were made cumulative upon those imposed, as mentioned below, in 1996.

10. Each of the applicants had, prior to the commission of the subject offences, a fairly substantial criminal history, relating principally to drug offences and offences of dishonesty.  Each had prior to the commission of the offences in July 1997 been sentenced to imprisonment on a number of occasions.  Pepper was sentenced to 4 months imprisonment in February 1993 for being unlawfully at large and in September 1993 was sentenced to 3 months imprisonment for attempting to escape lawful custody.  There were other sentences imposed of some months in length, the longest being 6 months for receiving in 1993.  Cornwell had been before the court on fewer occasions than had Pepper, but she committed an armed robbery in 1995 for which she was, in 1996, sentenced to 3 years imprisonment with a recommendation for parole after having served 4 months.  Like Pepper, she had a conviction relating to escape;  she was sentenced to probation in 1996 for escaping from legal custody.

11. There are psychologist's reports concerning each applicant which contain a great deal of useful information about their backgrounds.  They may be summarised by saying that the upbringing of the applicants and the way they were treated by some adults during their childhood must certainly have augmented the risk that, as has occurred, each woman would follow a very unsatisfactory course of life.  Pepper had a second-trimester abortion, according to the report, about two months prior to the commission of the subject offences, the father being a man described as a "speed freak" who continually abused her physically and emotionally.   She told the psychologist she had attempted suicide on three occasions; that she had been sexually molested, sometimes very severely, as a child;  that most of her de‑facto relationships have been with physically and emotionally abusive men;  that like her parents she habitually took drugs;  that she took up prostitution fairly early to support that habit.  One could give further details of the sad story, but the general picture is clearly one of deprivation and hardship;  and the other applicant's personal history is reasonably comparable with Pepper's.  It was suggested by the psychologist that imprisonment would not assist the rehabilitation of either woman;  however, the judge was right to take the course which he did, which was to reduce the sentence which would otherwise have been imposed on account of the applicants' very unfortunate personal circumstances, but nevertheless impose a significant custodial sentence.  The facts constituting the offences connected with the attempted escape were in our view such as to necessitate such a sentence.  With a view to escape, the applicants seized a female prison officer and held the blades of scissors against her neck;  the officer was threatened with death.  Another female officer attempted to intervene, but she was grabbed by the applicant Pepper, who forced the blade of another pair of scissors against her neck.  In this way the applicants managed to get out of the building, using the two seized officers as hostages, but they got no further than the prison car park where they were apprehended.  One of the officers suffered a dislocated shoulder and the other lacerations and bruising.  One was bitten on the face.  Were it not for the appalling circumstances of the early life of each applicant, it appears to us that substantially heavier sentences could have been warranted.

12. As we have mentioned, the applicant Pepper received a total of 10 months imprisonment for various other offences which were committed earlier in 1997, the details of which do not appear to us to require discussion.  As to those, it is enough to say that the sentences imposed were at a level which cannot be (and are not) seriously challenged.  Nor was it submitted that sentences totalling 2½ years imposed on the applicants for the escape offences were excessive.  The submission for the applicants concentrated, in the end, on two points.  It was argued that the learned primary judge erred in fixing, as his Honour did, a date of eligibility for parole with respect to Cornwell, of 24 March 2001.  Secondly, a contention was advanced with respect to the applicant Pepper that the date of eligibility for parole should be brought forward so as to enable her to apply for parole on a date earlier than the half-way point;  alternatively, that her sentences should be suspended.

13. With respect to the first point, Cornwell's fixed parole date, it is unnecessary to discuss the basis on which that was fixed below, since the respondent does not support that fixation.  A question which occupied time at the hearing was the date on which Cornwell would, apart from an order to the contrary made by the Court, be entitled to apply for parole, under s. 166(1)(d) of the Corrective Services Act 1988.  The relationship of this provision to the definition of "term of imprisonment", contained in s. 10 of the same Act, has been the subject of a decision of this Court in Walton (CA No. 338 of 1997, 18 November 1997).  The point is discussed in the judgment of Pincus J.A. at pp. 4 and 5;  as is pointed out there, it was not one which was strictly necessary to decide for the purposes of that case.  In discussing the effect of the definition of "term of imprisonment", Pincus J.A. said:

"It appears to me that the governing notion is liability to serve imprisonment, so that if the imprisonment ordered was discontinuously served because of parole or escape one ignores the gap and takes into account the length of the ordered sentence".

Having reconsidered the matter, we adhere to that view, but we are not certain whether its effect was properly stated in the calculation following on the sentence we have quoted.

14. Walton supports the view that the term of imprisonment for the purposes of the expression "until the prisoner has served half of the term of imprisonment to which the prisoner was sentenced" in s. 166(1)(d) of the Act depends on the Court's orders, so that if, for example, the serving of sentences is interrupted by a period of parole, "the term of imprisonment" remains the same as if it had not been interrupted.  But in the present case the judge was told that Cornwell, who had been sentenced in February 1996 to 3 years imprisonment for the robberies mentioned above, was released on parole after 4 months.  The precise period during which Cornwell was at liberty pursuant to parole granted does not appear, but is said to have been 8 months.  In February 1997, she was sentenced to a total of 12 months additional imprisonment.  When Cornwell on 27 July 1997 committed the offences relating to the attempt to escape, she was in prison serving these sentences, i.e. the balance of the 3 year term imposed in February 1996 and the cumulative sentences totalling 1 year imposed in February 1997.  Applying the definition of "term of imprisonment" then, the effect of s. 166(1)(d) of the Corrective Services Act 1988 was to make her eligible for release on parole when she had served half of the total of all these terms:  3 years plus 1 year plus 2½ years, making a total of 6½ years.  She had to serve 3 years and 3 months altogether and so, apart from any court order under s. 157 of the Penalties and Sentences Act 1992, she would become eligible for parole in January 2000.  We propose that the parole date be fixed as 31 December 1999.

15. The other contention mentioned above, to the effect that Pepper should have her parole date substantially brought forward or her sentences suspended does not appear to us to have any substance.  The principal basis on which it is put is that Pepper has attempted to rehabilitate herself and that she is, for various reasons, incarcerated at present under a harsh regime.  In our opinion, if it would otherwise be proper to take these circumstances into account, they should not be held to justify interference with the sentence imposed on Pepper, having regard to the rather serious nature of the offences involved in the escape attempt.

Summary

1. Pepper was sentenced on 16 September 1998 to 2½ years imprisonment, cumulative upon sentences totalling 10 months imposed on the same date.

2. Cornwell was sentenced on the same date, 16 September 1998, to 2½ years imprisonment, cumulative upon sentences imposed on 9 February 1996.

3. The words "is liable" in s. 156A of the Penalties and Sentences Act 1992 refers to liability to serve imprisonment under sentences imposed on an occasion prior to that on which the sentences covered by s. 156A are being imposed.

4. The expression "term of imprisonment" in s. 166(1)(d) of the Corrective Services Act 1988 has the meaning set out in s. 10 of that Act, the term being, in such a case as the present, the total period of time ordered to be served.  The prisoner has, to be eligible under s. 166(1)(d) to apply for parole, to serve half of the total period we have mentioned, so that time not served because of earlier release on parole is excluded from the calculation of time served.

5. The parole date for Cornwell should be fixed as 31 December 1999.

Orders

We propose the following orders:

1. Declare that the sentences imposed on each applicant for the offences committed on 27 July 1997 are all to be served concurrently.

2. As to Cornwell, the application for leave to appeal is granted and appeal allowed to the extent of making the date of eligibility for parole 31 December 1999.

3. Sentences otherwise confirmed.