R v Clare[2000] QCA 263

DAVIES JA:  The applicant was convicted after a trial in the Supreme Court of attempting to procure a man, Douglas, between 1 and 29 April 1997 to shoot a man, Griffith, with intent to murder.  At the same time he was acquitted of a charge of attempting to procure Douglas to shoot another man, Hard, with intent to murder him.

The facts with respect to the offence of which the applicant was acquitted are relevant at least because one of the grounds of his appeal against the sentence imposed on him is that there was a lack of parity between his sentence and that imposed on another man, Hunter, who was convicted of the offence of which he was acquitted. 

The applicant was convicted on 10 September last year and because, amongst other reasons, he appealed against that conviction, he was not sentenced until 28 February this year.  On that date he was sentenced to eight years imprisonment, cumulative upon sentences he was then serving, with a recommendation for parole eligibility on 30 June 2003.

At the time of the alleged commission of these offences, Hard was the de facto husband of Hunter's former wife.  Griffith was a man whom, the Crown alleged, Clare believed was informing the National Crime Authority about Clare's illegal activities.  The case against Hunter was that Hunter had cause to resent Hard and his former wife.  Hearing dates for matrimonial proceedings between them had been set and were approaching. 

Douglas was engaged initially in that respect to threaten the former wife with the possibility, amongst other things, of an "extreme accident", as it was described, to Hard.  Initially his instructions with respect to Hunter's former wife and Hard were to intimidate.  By contrast, Clare's purpose was a cold-blooded one of removing someone who was informing against him to the authorities. 

Both offences were to be committed with a .45 calibre pistol owned by Clare.  Douglas was to commit them in repayment of money borrowed from Clare.  A number of recorded conversations between Clare and Douglas record that Clare had in mind the death of some other people who may also, or perhaps even instead, have informed against him.  Clare was also the initial contact between Douglas and Hunter in respect of the proposed killing of Hard.

The learned sentencing Judge who sentenced both Clare and Hunter observed that Hunter's motivation was a domestic one.  He also took into account, in Hunter's favour, the fact that he reported the matter to the police in time to protect his wife and Hard from what he believed to be an attempt to kill Hard by Douglas.  He also took into account Hunter's less serious criminal history.  Hunter was then sentenced to five years imprisonment, suspended after 12 months.

The applicant, who was 51 at the time of the commission of the offence of which he was convicted and 55 at the time of sentence in respect of that offence, has a fairly substantial criminal history dating from the mid-eighties.  He was imprisoned in 1991 for two years for unlawful use of a motor vehicle.  In 1993 he was imprisoned for six years for drug offences, for which he was on parole at the time of the subject offence.  He was imprisoned again in February 1999 for three years for a drug offence, for which he was on bail at the time of the present offence.  The last of these offences was arguably the offence in respect of which he suspected Griffith or some others to have informed on him.  Mr Martin, during the course of his submissions, cast some doubt about whether that was so or not, and in the end it does not matter.

The main grounds of appeal, as appears from a very lengthy written outline prepared by the applicant with some assistance and advanced further orally by him today, are the lack of parity with Hunter's sentence, to which I have already referred; a denial of the benefit of a declaration in respect of pre-trial custody; that the cumulative nature of the sentence made it unduly onerous and excessive for the totality of the offences for which he was required to serve imprisonment; and that Hunter but not Clare had been given the benefit of good behaviour in prison whereas Clare's behaviour in prison had been exemplary.

As to the first of these, the facts which I have already stated in my view show that there was no lack of parity between the sentence imposed on Clare and that imposed on Hunter.  Clare's motivation, the elimination of an informer, strikes at the heart of the justice system and makes his offence much more serious than Hunter's.  Also, the fact that Hunter took some steps, admittedly at the last minute, to prevent the offence upon Hard from being completed, whereas Clare seemed concerned to ensure that Griffith was eliminated and expressed himself satisfied, in effect, when told that he had been.  It is also correct that Hunter's previous criminal history was much less serious than that of Clare.  And finally, Clare provided Douglas with the relevant weapon and was the initial point of contact with him in respect of both offences.  In those circumstances, in my view, it is unsurprising that the difference between the sentences imposed on each was as marked as in fact it was. 

As to the complaint about denial of a declaration in respect of pre-trial custody, it seems plain that he was returned to custody because his parole in respect of the earlier offence was suspended and it appears to have been suspended for reasons unrelated to the commission of the subject offence.  It is true that after the suspension of parole, the fact that he was charged with this and the other offence, of which he was later acquitted, was a relevant factor in refusing to reconsider the suspension.  But it is plain that he was in prison in respect of the earlier offence, not this one. 

More importantly, perhaps, because this sentence was imposed cumulatively upon the earlier offence, the period in custody would in fact be taken into account in respect of that offence.  The applicant has submitted that this period, a period of 685 days from 30 April 1997 to 18 February 1999, will not in fact be taken into account.  If that is true, that is an error on the part of the Corrective Services authority and that should be corrected. 

Nor is there any substance, in my opinion, in the complaint that this sentence ought not to have been served cumulatively or that the effect of its imposition cumulatively was to impose too heavy a burden for the totality of the applicant's criminal conduct.  Prior to this sentence, the applicant would have been eligible for parole in September 2000.  That was the point at which he would become eligible for parole under those sentences, or that was at least the basis of calculation of the learned sentencing Judge as appears from some notes to which our attention was drawn.  Mr Clare has submitted that that was not correct and that under the earlier sentences he would have been eligible for parole in February 2000. 

Again, in my opinion, that difference does not matter when in the end I come to consider whether this sentence was manifestly excessive.  It means, on the first view, that is, the view which his Honour took, that the current sentence would entitle him to eligibility for parole after serving only another two and three quarter years.  On the view which Mr Clare puts forward, it would entitle him to parole after serving only another three years and three months.  Neither of these, in my view, is excessive when one has regard to the seriousness of the current offence.

The applicant also asserts, in the course of his oral submissions today, that he is unlikely to obtain parole at or about that time.  However, I would not be prepared to assume that the Corrective Services authorities would not take appropriate account of the recommendation of the learned sentencing Judge.

Submissions were also made by the applicant, in the course of his oral submissions, to the fact that he has or will lose some entitlements to remission.  Some of these, it appears, he has lost because of the suspension and then cancellation of his parole.  But those are administrative matters within the prison system and are not matters appropriate for consideration by this Court which is concerned only with the appropriateness of the overall sentence imposed including the recommendation for early parole.

Finally, as to the complaint about credit being given for Hunter's good behaviour and none for Clare's, there is some substance in the complaint which was made in the sense that the learned sentencing Judge may have misunderstood what the state of the matters were with respect to the applicant's conduct in prison.  Against him is the fact, as appears from his prior sentencing record, that the sentence which was imposed immediately before this one was in respect of drug offences committed whilst in prison.  On the other hand, it is correct that subsequently his behaviour appears to have been good. 

More importantly, it seems to me that when one looks at the seriousness of the offences, that is those committed by the applicant and that committed by Hunter, conduct in prison since the commission of these offences and the sentence imposed are unlikely to have any substantial effect on the appropriateness of the sentence.  Even less so, in my view, in the case of Clare because of Clare's serious previous criminal history.  I do think, in the end, that the learned sentencing Judge erred in the discussion of this question but I do not think that it could have affected the overall sentence. 

In my opinion, having regard to the factors I have mentioned, the overall sentence was not manifestly excessive and I would therefore refuse the application.

McPHERSON JA:  I agree.

THOMAS JA;  I agree.

McPHERSON JA:  The application for leave to appeal against sentence is dismissed.

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