The Queen v McQuillan[1999] QCA 512

SUPREME COURT OF QUEENSLAND

1. THE COURT:  The applicant for leave to appeal against sentence was on 9 July 1999 convicted in the District Court at Brisbane on three indictments charging various offences together with a complaint charging a summary offence. He was sentenced to terms of imprisonment of 4 years for two counts of housebreaking; 2 years for two counts of breaking and entering; 18 months for one count of receiving; 6 months for unlawfully entering a motor vehicle; and 3 months for possession of property suspected of being stolen. These sentences were all ordered to be served concurrently, which meant that there was an effective head sentence of imprisonment of 4 years, as well as concurrently with an existing sentence he was already serving on that date. In deference to provisions of s 157(3) of the Penalties and Sentences Act 1992, his Honour recommended a new parole date, which he fixed at 7 January 2001, which was 18 months into the new sentence of 4 years then being imposed. The learned trial judge also declared that a total of 53 days spent in pre-sentence custody be deemed to be time already served under that new sentence. That total of 53 days was arrived at by adding two periods of: (a) 33 days between 1 July 1998 and 3 August 1998; and (b) 20 days between 18 December 1998 and 6 January 1999.

2. At the time of sentencing in the District Court on 9 July 1999, the applicant was already under sentence for one or both of two other sets of offences. They were:

A. Sentence of imprisonment for 12 months imposed in the magistrates court at Southport on 31 March 1999, when the applicant was convicted of nine counts of possessing dangerous drugs committed on 8 December 1998.

B. Sentence of imprisonment for 2 months for three charges of entering premises with intent, one of breaking and one of wilful damage, all committed on 14 December 1998, for which the applicant had been sentenced on 30 June 1999 in the magistrates court at Inala.

Because, in relation to sentence B above, nothing appears to have been said about the term of imprisonment for 2 months being cumulative upon sentence A, it is, by the operation of s 155 of the Penalties and Sentences Act 1992, to be served concurrently with sentence A. This may explain why, in imposing sentence B on 30 June 1999, the magistrates court at Inala ordered that the non‑parole period be fixed at 10 months. Sentence A was one of imprisonment for 12 months, under which the applicant could presumably have expected to be considered for parole after 6 months; ie at 30 September 1999. See s 166 of the Corrective Services Act 1988.  The practical effect under sentence B of ordering a non-parole period of 10 months therefore was to defer the date of parole eligibility for a further four months, or until 31 January 2000. 

3. It is perhaps not quite clear to us how this result could have been achieved under the relevant statutory provisions. The expression "non-parole date" is used in s 157(3)(b) of the Penalties and Sentences Act 1992, but it applies only when a court "of lesser jurisdiction" sentences an offender to a term of imprisonment, and the jurisdiction of the magistrates court at Inala is not less than that of the magistrates court at Southport, which was the court which had then "last" (on 31 March 1999) sentenced the offender to a term of imprisonment (sentence A), which he was already serving. The non-parole date of 10 months cannot be justified under s 157(3)(a) because no parole recommendation was made in relation to sentence A. There could therefore not have been a Αfresh≅ recommendation under s 157(3)(a). See R v Doyle [1996] 1 Qd R 407. The "non-parole" period of 10 months under sentence B was presumably an exercise of the power under s 157(2) of the Act of 1992 to make a recommendation for parole after the applicant had served such part of the term of imprisonment as the court specifies in its recommendation. The difficulty with such an interpretation is that a recommendation for parole after 10 months cannot be accommodated in a sentence of imprisonment for only 2 months as was imposed under sentence B. Plainly there is some piece of information missing, or an error has occurred along the way. We have nothing before us but the applicant's criminal record from which to derive the details of sentence B.

4. However that may be, there has been no appeal against either sentence A or sentence B, and the only available course therefore is to take those two sentences as they now stand. Accepting that sentence B had the effect of deferring parole until 31 January 2000, the sentence of the District Court imposed on 9 July 1999 now under review had the effect of deferring eligibility for parole until a date fixed as 7 January 2001. About that, at least, there can be no dispute.

5. Bearing that in mind, it is possible to turn now to the complaint of the applicant (who appeared before us in person) about the sentence imposed. At the hearing in this Court, the complaint assumed more than one form. Eventually it seemed to be that he would prefer an earlier parole date than the one he now has. The applicant is from South Australia, where he has a young son, who was formerly in the custody of the son's mother. The son has, however, now been removed from his mother's custody, and the applicant wishes to take her place in looking after the boy. That is natural enough, and one can only feel sympathy for a child whose parents consider his welfare so little as to conduct themselves in a way that results in the childs being taken away from his mother and separated from his father by his imprisonment. It is not, however, a sufficient ground for interfering on appeal with the sentence below.

6. It is true that the judge did not refer to this factor in his sentencing remarks; but it is not such an overriding consideration going in mitigation of the applicant's offences as to cause this Court to alter the sentence imposed on this appeal: cf R v Narelle Gadaloff (CA no 384/1998; 23 Nov, 1998). Whatever sympathy might be evoked on  the applicant's behalf because of his young son is quickly dissipated by reviewing the applicant's criminal record. He was born on 20 March 1971, and has an extensive history of offences, which, beginning in 1986, contains one or more entries of offending behaviour in every succeeding year from then until now. Most of them are in respect of housebreaking, stealing, receiving, unlawful use, and false pretences. During that period of some 13 or more years, the applicant has been given many opportunities for rehabilitation of which he has consistently failed to take advantage. He has breached the terms of a bond on at least two different occasions; and there are three recorded breaches of parole. He has twice contravened the terms of his bail; escaped lawful custody; and remained unlawfully at large. His conduct in the past does not suggest that further lenient treatment will suddenly produce a genuine effort at rehabilitation in the future. His problem (like that of his son's mother) is, he told us, addiction to drugs; and there is no assurance that he will cease offending without first overcoming that addiction, if it is at all possible for him to do so. We would therefore not be persuaded by those submissions to interfere with the sentence imposed below.

7. This leaves for consideration only the question whether the applicant's pre-sentence custody has been correctly calculated and declared. As mentioned, the learned judge arrived at a total of 53 days, consisting of 33 days between 1 July 1998 and 3 August 1998; and 20 days between 18 December 1998 and 6 January 1999. In respect of the second of those two periods, it now seems clear that the applicant was not in law entitled to credit under s 161 of the Penalties and Sentences Act 1992. That provision applies only when an offender has been held in custody in relation to proceedings for the offence for which he is sentenced and for no other reason. Between those two dates of 18 December 1998 and 5 January 1999, the applicant was in custody not only for the offences for which he was later sentenced in the District Court on 9 July 1999, but also for the nine drug offences in respect of which he was later sentenced in Southport on 31 March 1999. As far as one can see, he was not given any credit for those 20 days in relation to the Southport sentence of 12 months (sentence A) imposed on 31 March 1999, so that it is perhaps not unreasonable that he should have been credited with 20 days under the District Court sentence imposed on 9 July 1999.

8. This leaves for consideration the total period of 102 days between 18 December 1998 and 30 March 1999, during which the applicant was in custody on remand. Of those 102 days, the 20 days already referred to were catered for in the declaration made by his Honour in sentencing in the District Court on 9 July 1999. Of the remaining 82 days not accounted for, the applicant was, again, not in custody for no other reason than the proceedings for which he was sentenced on that occasion. He was then also on remand awaiting proceedings for the nine drug offences in respect of which he was sentenced in Southport on 31 March 1999. Presumably, although this is perhaps a little less clear, he was also then in custody in relation to proceedings for the offences for which he was sentenced at Inala on 30 June 1999. Those offences were committed on 14 December 1998. No allowance was made for the 82 days in the Inala sentence imposed on 30 June 1999 and technically, at least, they were under s 161(1) not capable of being taken into account under any of the sentences imposed on 31 March 1999, 30 June 1999, or 9 July 1999.

9. However, in R v Skedgwell (CA no 434/1997; 15 May 1998) this Court held that s 161(1) of the Act of 1992 was not an exhaustive statement of the circumstances in which time in custody could be taken into account when arriving at a sentence, and that, in imposing a further sentence, a court retained a general discretion of making allowance for time spent in custody even if it did not literally satisfy the terms of s 161(1). Of course, it would be wrong to take account of it on more than one occasion; but, as we have said, here the period of 102 days has (except as to the 20 days already specified) not been allowed for in any of those three sentences. In Skedgwell it was said that the general sentencing discretion to consider a period of such custody as a factor operating in reduction of sentence could be exercised in one or more of several different ways. It could, for example, be applied to reduce the head sentence imposed, or to accelerate the date for consideration for parole, or perhaps in some other way. This may have been the point that counsel was seeking to make at the sentence hearing below in the case of this applicant (Record, p.7, lines 26-42). Bearing in mind the applicant's plea to this Court for an earlier parole date, it seems to us to be appropriate to adopt the latter course in the present case. As the sentence stands, the recommendation made on 9 July 1999 is that the applicant be considered for parole on 7 January 2001. The unaccounted for "deficit" of days spent in custody is 82 days. Justice to the applicant would sufficiently be done by accelerating the earlier parole date by that period of 82 days. On our calculations, that would have the consequence of bringing it forward to 17 October 2000.

10. Yet another apparent complication in the applicant's sentencing history is that on 11 July 1997, he was sentenced in the Southport magistrates court to imprisonment for 24 months suspended after 12 months for an operative period of 3 years.  On 18 December 1998, which was within that period, he committed the nine drug offences of which he was convicted on 31 March 1999 (sentence A above). The court on that occasion was under s 146 and s 147 of the Act of 1992 required to consider whether or not to activate the unserved portion of that suspended sentence.  On the present application for leave to appeal, it was, on the material originally before the Court, not at all clear whether or not the unserved portion of that suspended sentence had on that occasion in fact been activated; and, if not, whether it was not now, under s 146(1)(b) of the Act, the duty of this Court to ensure that it was.  Mr Winn of counsel for the Crown on this application has, however, now provided us with copies of the formal certificate or certificates of conviction in respect of sentence A in the magistrates court at Southport on 31 March 1999.  From this it appears that Mr Pollock SM, before whom the nine drug charges came on that date, ordered that the suspended part of the sentence imposed on 11 July 1997 (that is 12 months) be served in full.  It is to be inferred that, apart from so ordering, his worship imposed no further penalty for the nine drug offences dealt with on 31 March 1999 (sentence A above).  It follows that there is no need for this Court to consider the question under s 146(1)(b).

11. On what has been said here, the application and appeal should be allowed to the extent of varying the date on which it is recommended that the applicant be considered for parole from 7 January 2001 to 17 October 2000.