R v Griffiths[1999] QCA 5

COURT OF APPEAL

DAVIES JA

PINCUS JA

MACKENZIE J

CA No 339 of 1998

THE QUEEN

v.

LAWRENCE MATTHEW GRIFFITHS

(Applicant)

BRISBANE

DATE 03/02/99

JUDGMENT

DAVIES JA: The applicant was convicted on his own plea of guilty on 27 August last of contempt of Court. The offence involved his refusal to give evidence in a murder trial against a man, Beard. The applicant was, at the time of the commission of this offence, serving a sentence of life imprisonment for murder, a sentence which had been imposed on 25 October 1995. His evidence, had he given it, based on statements which he gave to a police officer, related to admissions made by Beard to him whilst sharing a cell at the Arthur Gorrie Correctional Centre. 

His reason for refusing to give evidence, which the learned sentencing Judge accepted, was that he had been threatened with violence by the prisoners if he gave such evidence. The learned sentencing Judge imposed a sentence of 12 months imprisonment for the offence of contempt of court to be served concurrently with the sentence of life imprisonment. 

His Honour was obliged by law to impose that sentence concurrently, not having power to impose a sentence cumulatively upon a life sentence. R v Mickelo (1993) 1 Qd.R 230. His Honour was naturally concerned that the imposition of a concurrent sentence might not sufficiently mark the community's disapproval of such serious conduct. His Honour's concern was, in my view, quite justified. 

However, His Honour sought to overcome that difficulty by purporting to make a recommendation apparently pursuant to section 157 (3)(a) of the Penalties and Sentences Act relating to the period of imprisonment that the applicant must serve. His Honour said:

"I recommend that he not be considered for parole until after he has served 15 years and 6 months from 25 October 1995."

25 October was the commencement date of his life sentence under which, pursuant to section 166 of the Corrective Services Act, he would be eligible for parole after serving 13 years. His Honour was mistaken in thinking that it was at the time 15 years, but that does not affect the result of this appeal.

Plainly, what His Honour purported to do was to add another six months to the eligibility date. Section 157 appears to state comprehensively the powers of the Court to make recommendations with respect to eligibility for release on parole. Subsection (2) of that section permits the Court to recommend that an offender be eligible for release on parole after serving some part of the term of imprisonment imposed. Plainly that subsection has no application here.  Subsection (3)(a) however provides:

"(3)if a Court imposes another term of imprisonment on an offender who is already serving imprisonment for an offence, the Court must -

(a)if it is a Court of like jurisdiction or higher jurisdiction to the Court that last sentenced the offender to a term of imprisonment - make a fresh recommendation for parole relating to the period of imprisonment that the offender must serve."

The meaning of that subsection is by no means clear, but this Court has held that it applies only where there is an existing recommendation for parole, the word "fresh" implying that. Doyle C.A. No 454 of 1993; 6 April 1994 unreported. His Honour therefore had no power in sentencing the applicant for contempt to make a recommendation with respect to the whole of the term of imprisonment which he must serve, including the life sentence. It follows, as the respondent concedes, that the application must be granted and the appeal allowed, to the extent of limiting the recommendation for parole.

Members of this Court have on previous occasions drawn the attention of the legislature to this problem. An effective sentence cannot be imposed in a case such as this. See R v. Collins C.A. No 563 of 1996; 18 March, 1997, unreported. It is to be hoped in the meantime the commission of this offence will be taken into account by the appropriate authorities when the time comes to consider any application by the applicant for parole.

PINCUS JA: I agree.

MACKENZIE J: I agree.

DAVIES JA: The application is granted and the appeal is allowed to the extent of deleting the recommendation for parole.