R v Cassar; ex parte Attorney-General
[2001] QCA 300
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- Unreported Judgment
- Appeal Determined (QCA)
- R v Cassar; ex parte Attorney-General[2001] QCA 300
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R v Cassar; ex parte Attorney-General[2001] QCA 300
Reported at [2002] 1 Qd R 386
R v Cassar; ex parte Attorney-General[2001] QCA 300
Reported at [2002] 1 Qd R 386
SUPREME COURT OF QUEENSLAND
CITATION: | R v Cassar; ex parte A-G [2001] QCA 300 |
PARTIES: | R |
FILE NO/S: | CA No 95 of 2001 DC No 888 of 1991 |
DIVISION: | Court of Appeal |
PROCEEDING: | Sentence Appeal by A-G (Qld) |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 31 July 2001 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 July 2001 |
JUDGES: | de Jersey CJ, Thomas and Williams JJA Judgment of the Court |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – appeal against Judge’s decision to re-open sentence on basis of “clear factual error of substance” – where error specified as “a reasonable expectation” as to likely parole date – where such expectation rested on condition that respondent properly conduct himself in prison – where respondent did not properly conduct himself – where s 188 concerns only position obtaining at time of sentencing – whether sentencing court clearly in error – whether s 188 encompasses re-opening in these circumstances – whether a sentencing Judge’s expectation as to parole a matter of fact or merely a forecast Penalties and Sentences Act 1992 (Qld), s 188, s 188(1)(c) R v Abbott SC No 437 of 1999, 27 June 2001, referred to R v Kelly [2001] QCA 292; CA No 106 of 2001, 27 July 2001, referred to R v Mackenzie [2000] QCA 324; CA No 353 of 1999, 11 August 2000, distinguished Williams v Queensland Community Corrections Board [2000] QCA 75; Appeal No 6237 of 1999, 17 March 2000, referred to |
COUNSEL: | MJ Byrne QC for the appellant AJ MacSporran for the respondent |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant Dearden Lawyers for the respondent |
- THE COURT: The Hon the Attorney General appeals against a learned District Court Judge’s decision to re-open criminal sentencing proceedings in relation to the respondent which had been conducted about a decade earlier in the District Court. The ground for reopening was that the Court at that earlier time determined upon its sentences on the basis of “a clear factual error of substance” (s 188(1)(c) Penalties and Sentences Act 1992).
- His Honour Judge Shanahan, as he then was, had sentenced the respondent on 21 June 1991, upon his pleading guilty, in relation to nine counts of armed robbery, one while in company, and two of unlawful use of a motor vehicle with a circumstance of aggravation. The offences concerned the theft of substantial sums of money from financial institutions, in many cases with actual violence, while the respondent was either armed, or pretending to be armed, with firearms. They occurred over the period 9 November 1990 to 21 December 1990. At the time he was on parole under Queensland sentences of six years’ imprisonment for three similar offences, and six years’ effective sentences of imprisonment imposed in New South Wales for other comparable offences. He was also subject to probation. Shanahan DCJ sentenced him on 21 June 1991 – unsurprisingly – to 15 years’ imprisonment with parole eligibility recommended after six years.
- The respondent might then reasonably have expected, therefore, that with proper behaviour and absent other relevant countervailing considerations, he would become eligible to apply for parole in about June 1997. See Williams v Queensland Community Corrections Board [2000] QCA 75, para 25. Consistently with that expectation, the Queensland Community Corrections Board in June 1996 approved the respondent’s application for “release to work”. Unfortunately however for the respondent, while he was at large on 25 September 1996 for the purpose of receiving physiotherapy at the Royal Brisbane Hospital, without authority he spent time with a former girlfriend and failed to meet his appointment at the requisite time. The respondent has acknowledged that breach, which contributed to his being returned to secure custody later that day.
- About a year later, on 11 November 1997, the respondent was accorded the advantage of a low security classification. But other circumstances adverse to his prospects intervened. Disappointment over his still being held in secure custody, notwithstanding that classification, led, he asserts, to his reverting to unlawful drug use. Related breaches and further detention, a conviction for possession of a syringe, and other breaches of discipline, increased his security points rating to the level where, within the framework of its guidelines, the Queensland Community Corrections Board would not release him on parole.
- In his application under s 188(1)(c) of the Penalties and Sentences Act, the respondent specified the “clear factual error of substance” necessary to establish the Court’s jurisdiction to reopen as being, for relevant present purposes, “a reasonable expectation at the time of sentencing that the (respondent) would be entitled to parole on 21 June 1997”. The following specification of grounds in his application involved acknowledgement that such an expectation must be subject to “established criteria”, including “that he be of good conduct”. It is of course, for present purposes, the Court’s expectation which would apply.
- We revert later to the impossibility in this context of characterizing the subject matter of such an expectation as a matter of existing fact. The circumstance that a particular expectation is entertained may be a matter of fact. But it would here be its content, if anything, which could be relevant … “he could then reasonably expect parole” … and that is not a matter of fact, but a forecast or prediction.
- Reopening the proceedings on 11 April 2001, the learned District Court judge from whose decision this appeal is brought (who was not, it may be mentioned, Shanahan DCJ who had in the meantime retired), vacated the sentences imposed on 21 June 1991 and substituted a sentence of 10 years’ imprisonment backdated to 21 June 1991. (Ordinarily, of course, an application under s 188 should be brought before the judge who carried out the sentencing, notwithstanding the concluding terms of subsection (1).)
- Regrettably his Honour did not on 11 April 2001 precisely specify the “clear factual error of substance” upon which he relied as sufficient to impugn the sentences imposed in 1991. Yielding to the discipline of doing so may rationally have uncovered the patent inapplicability of s 188.
- The learned judge appears to have reasoned that had the sentencing judge in 1991 foreseen the respondent’s subsequent history, including his own further offending, he would have treated the respondent more leniently. That may be drawn from his following remarks:
“There has been no benefit achieved by his plea of guilty. In those circumstances, it has been submitted to me that a clear factual error of substance occurred at the time of the sentence. It was submitted that the sentencing Judge, had he been aware of the problems encountered in this case, would have imposed a different sentence.
I am inclined to favour that view. Therefore, I accede to the application the sentence be reopened.
…
In so far as it has been contended by the Crown that the applicant himself breached prison regulations, I have taken into account the following matters in his favour: it is appreciated by the Courts that a person may initially misbehave in prison but, in effect, turn over a new leaf. Once that has occurred, once the applicant has addressed his offending problems, it would be expected he would have a realistic chance of parole. In this case, I find that the applicant has done all he can up to now to comply with the requirements but the guidelines have taken away his chance of parole, at least until 2003.”
- This is a case where any “reasonable expectation” of the sentencing judge as to subsequent eligibility of the prisoner to apply for parole, rested on a condition which the prisoner failed to satisfy, namely, that he properly conduct himself thereafter. We have difficulty accepting as significant, as his Honour apparently did, that sentencing courts appreciate “that a person may initially misbehave in prison”. Of course they may. But if that occurs, it may obviously – depending on the nature of any misconduct – erode the basis for any reasonable continuing expectation as to parole.
- The respondent apparently lost the prospect of his securing parole in accordance with the recommendation primarily on account of his own unacceptable conduct over the period following the sentencing, reflecting upon conclusions as to rehabilitation. Section 188 clearly had no application in such circumstances. The Judge’s error is highlighted by his reference to awareness by the sentencing judge of “the problems encountered in this case”, all of which arose subsequently (and were of the respondent’s making). Section 188 concerns the position obtaining as at the time of sentencing, and must be applied strictly on that basis.
- The learned judge referred on 11 April 2001, apparently as providing support for his approach, to R v Mackenzie [2000] QCA 324. The “clear factual error of substance” which in that case justified reopening was the misapprehension of the Court of Appeal at the time of substituting a fresh sentence that the prisoner’s security points rating and other considerations then applying meant that the Queensland Community Corrections Board could not implement the Court’s recommendation as to eligibility for parole. Thus the Court of Appeal was effectively the original sentencing court and it was its sentence which was based on “a clear factual error of substance” at the time that fresh sentence was imposed. By contrast, this prisoner’s loss of parole prospects consistent with the Court’s recommendation in 1991 flowed not from any such mistaken view then held by the Court, but from the prisoner’s own subsequent misconduct.
- The jurisdiction to reopen sentencing proceedings under s 188 depends on clear statutorily expressed criteria. There is no occasion to adopt anything but a strict approach to their applicability. Otherwise, the integrity of the sentencing process will be imperiled. The apparent extent of current recourse to s 188, which one would think should only very occasionally be justified, warrants our adding these brief observations.
- Under s 188(1)(c), it is the sentencing court which must have made the error, and the error must be “clear factual (and) of substance”. There was no error here. Any “error” constructed on 11 April 2001 by the learned judge in reopening the proceedings was neither clear (“I am inclined to favour that view”) nor, of course, factual: it concerned, put at its highest, an expectation or forecast said to have been misplaced. It is necessary, for s 188, to confine oneself to the approach of the sentencing court. A prisoner’s disappointment over denial of parole is simply not to the point. For reasons already mentioned, furthermore, it is not possible to characterize the subject matter of a forecast or expectation entertained by a judge in relation to parole as covering matters of existing fact. (See also the observations of Mackenzie J in R v Abbott 437/1999, 27 June 2001.) It is so obvious it should go without saying, in any event, that it does not follow that because a sentencing judge’s expectation as to parole is not fulfilled, the sentencing process must be taken to have been affected by error – factual or otherwise. Judges’ recommendations as to parole are not, and never have been, binding in the sense that the executive must implement them, although of course they should be accorded appropriate weight. If a judge intends that a prisoner’s future release be more definitely provided for, there are other mechanisms for ensuring that, such as the suspending of the sentence of imprisonment.
- This Court’s attention was drawn to more than one recent decision in the District Court where a sentence was reopened under s 188 on the basis of a prisoner’s disappointed parole expectation. The error of doing so is recognised in R v Kelly [2001] QCA 292, 27 July 2001, paras 12-15.
- Attempts to review sentences, in light of subsequent events, by resort to a creative, non-literal construction of s 188 must be strongly discouraged. The section may not be used as an avenue for the judicial review of administrative decisions. Sentences are reviewed through the appeal process, not by means of this provision, which is in the nature of a ‘slip rule’, to be used in the exceptional, limited circumstances to which in precise terms it refers.
- The following orders will be made:
- allow the appeal;
- set aside the orders made by the District Court on 11 April 2001;
- confirm the pendency of the orders made in the District Court upon the sentencing of the respondent on 21 June 1991.