The Queen v Stephenson[2001] QCA 407

SUPREME COURT OF QUEENSLAND

1. [1]
   THOMAS JA: I agree with the reasons of White J and of Wilson J and I agree with the orders proposed by Wilson J.
2. [2]
   WHITE J: I have read the reasons for judgment of Wilson J and agree with her that this application should be dismissed.  This is not a matter to which s 188(1)(c) of the Penalties and Sentences Act 1992 applies.  None of the other arguments addressed by the applicant and canvassed by her Honour give rise to any relief on this application.
3. [3]
   I wish to add some observations on what is the applicant’s central complaint, that he has received no benefit from his plea of guilty and has already served 10 years of an effective 14 year term of imprisonment with the real possibility of serving the whole sentence.  This court granted the applicant’s application for leave to appeal against the sentence imposed in the District Court and allowed the appeal and ordered him to serve 6 years of the total period of imprisonment being the 10 year subject sentence and the sentence of 4 years in respect of which he was on parole at the time that he committed the offence.  This amelioration in the sentence was to reflect his plea of guilty and was expressed to be slight because the accused and his co-offenders were caught virtually red-handed.  At a subsequent hearing by the court on 15 March 1999 a declaration was made that the applicant became eligible for release on parole on 8 March 1997.
4. [4]
   This case does demonstrate the real possibility that an offender who pleads guilty to an offence which the sentencing court wishes to recognise in a tangible way pursuant to s 13 of the Penalties and Sentences Act may, in fact, receive no benefit. This occurs when the sentencing court makes a recommendation that the offender be eligible to apply for release on parole earlier than the statutory scheme in reduction of the sentence imposed.  Such a recommendation is effective to reduce the sentence for the purposes of s 13, R v Corrigan [1994] 2 Qd R 415, 416 per Macrossan CJ and Lee J at 416 and per Davies JA at 419;  R v Maxfield (2000) 114 A Crim R 249 per Davies JA and Fryberg J at 255.
5. [5]
   However, once made, whether or not that recommendation is given effect to is generally beyond the reach of the court sitting in its criminal capacity.  The nature of the recommendation under s 157 of the Penalties and Sentences Act was considered by this court in Williams v Community Corrections Board (Qld) [2001] 1 Qd R 557.  The court said at 567:

“The statutory consequence of … a recommendation is that it fixes the date before which a prisoner is not eligible for release on parole; s 166(1) of the Corrective Services Act 1988 is made subject to s 157 of the Penalties and Sentences Act 1992.  But the effect of such a recommendation will ordinarily be greater than that of simply fixing the date before which its eligibility for release cannot be considered.

A recommendation for early parole is part of the sentence imposed and mitigates the effect of that part of the sentence which imposes the term of imprisonment.  That is not because the prisoner has an absolute entitlement to parole at or about the recommended date. Clearly there is no such entitlement.  It is because it is a reasonable expectation, at the time of sentencing, that the offender will become entitled to parole at about the date recommended.  That expectation may be falsified or modified because of information gained about the prisoner and his prospects of rehabilitation during the period between commencement of sentence and the eligibility date and it would be unsurprising if, relying on that information, the Board did not grant parole at or about that date.  But in the absence of such information placing the Board in a better position to make a judgment on this question than the sentencing judge, there is cause to question whether the refusal by the Board to grant parole at or about the time recommended is the result of some error by it which would justify a review of its decision.”

6. [6]
   In Maxfield the applicant for leave to appeal against sentence pleaded guilty and was sentenced to a term of imprisonment of five years with a recommendation for parole eligibility after serving two years.  A number of new issues were raised before the court to show that the sentence was manifestly excessive because a proper recognition of the plea of guilty was not given.  This was because of the unlikelihood of the applicant obtaining parole.  The applicant had a previous criminal history of escaping from prison and in that circumstance ministerial policy and guidelines required that the prisoner be classified as a high security risk for a minimum of two years.  No application for release on parole would be entertained from a high security classified prisoner.  Davies JA and Fryberg J at 255 observed:

“If, viewed at the time of sentencing, there is a significant risk that effect will not be given to a recommendation, then (at least in the case where the risk exists for reasons beyond the prisoner’s control) the recommendation does not qualify as a reduction of sentence within s 13 of the Penalties and Sentences Act.”

7. [7]
   The material before this court does not suggest that at the time of sentencing there was any significant risk that effect would not be given to the parole recommendation although for reasons that are not apparent on the material placed before the court, the applicant has not been granted parole.  It may be that a sentencing court, desirous of reducing an offender’s sentence to take account of a plea of guilty can only be confident that that benefit is accorded if there is a suitable reduction in the head sentence or a partially suspended sentence is imposed.  If the sentence is expressed to be reduced or partially suspended for that reason and the sentence which otherwise would have been imposed stated, concerns about consistency in sentencing would be accommodated.
8. [8]
   I agree with the orders proposed by Wilson J.
9. [9]
   WILSON J: This is an application to reopen a sentence imposed by the Court of Appeal on 16 December 1993 pursuant to s 188 of the Penalties and Sentences Act 1992. The applicant appeared on the application as a litigant in person.
10. [10]
    Such an application ought ordinarily to be brought within 28 days of the sentence. The present application is clearly out of time, but I would be prepared to extend time if it had prospects of success.^[1] However, for the reasons I am about to express, it has no prospects of success, and so should be dismissed.
11. [11]
    On 30 November 1989 the applicant was sentenced to four years’ imprisonment for armed robbery. He was released on parole in November 1991.
12. [12]
    On 8 March 1993, whilst on parole, he committed the further offences of armed robbery in company and the unlawful use of a motor vehicle for the purpose of facilitating the commission of an indictable offence. He was taken back into custody on that day.
13. [13]
    On 18 June 1993 he pleaded guilty to the further offences, and was given a head sentence of 10 years cumulative on the term then being served, with a recommendation that he be eligible for parole after 4 years. There were two cooffenders - Hocking, who was sentenced to ten years’ imprisonment cumulative upon a sentence then being served by him, with a recommendation that he be eligible for parole after four years, and McCarty, who was sentenced to twelve years’ imprisonment cumulative upon a sentence of eight years and seven months then being served by him, with a recommendation that he be eligible for parole after five years.
14. [14]
    They all applied for leave to appeal against sentence. On the hearing of that application the present applicant was represented by counsel.^[2] The Court rejected a submission that the sentence imposed on him was manifestly excessive having regard to his plea of guilty and the lack of parity with the sentence imposed on Hocking, who had a more extensive criminal history. The applications of the three co-offenders were granted and the appeals were allowed, the Court of Appeal setting aside the sentences and in lieu thereof imposing terms of imprisonment of the same duration as those imposed by the sentencing judge cumulative upon the sentences already being served. In each case it made a recommendation for eligibility for parole after a certain number of years of the total period of imprisonment required to be served under the sentence then being imposed and the sentence already being served (in the present applicant’s case, after six years). In each case it declared that a period of nine months and eight days presentence custody between 8 March 1993 and the date of that sentence be imprisonment already served under the sentence.^[3]
15. [15]
    According to the application now before the Court, the applicant made an unsuccessful application for parole in August 1994. In June 1996 he was released to work, and in July 1997 he was given home detention. The home detention was revoked the next month: according to the respondent’s written submissions, this was because he was convicted of the unlawful possession of a dangerous drug. He made another unsuccessful application for parole in September 1997. In 1998 he commenced a civil proceeding against the Department of Corrective Services.^[4] He informed this Court that that action is “still going on”, Mr Justice Shepherdson having dismissed an application to strike it out.
16. [16]
    Acting without legal representation, in 1999 the applicant made an application for an extension of time within which to appeal and to reopen the sentence pursuant to s 188 of the Penalties and Sentences Act, apparently with a view to clarifying the date on which he became eligible for parole.^[5] On 15 March 1999 the Court of Appeal declared that he became eligible for release on parole on 8 March 1997 and otherwise dismissed the application.
17. [17]
    The applicant made another unsuccessful application for parole in May 1999. He sought a statement of reasons for the refusal. Dissatisfied with the response he received, he made an application under the Judicial Review Act 1991, which was dismissed in February 2001.^[6] No appeal has been lodged.
18. [18]
    The applicant complained to this Court that his sentence has been miscalculated and as a result not implemented. He said that he has now served ten years of a fourteen year sentence, contrary, he said, to the intention of the courts. He complained that he has not received any benefit from his plea of guilty. He seemed to be asking this Court to alter the term of imprisonment to take account of his plea of guilty (despite the fact that in 1993 the Court of Appeal had said that this had been adequately done by fixing the term at ten years). He advanced an argument (to which I shall return in more detail below) that in December 1993 the Court of Appeal had acted contrary to s 668E of the Criminal Code in setting aside the sentence and imposing a term of imprisonment which was exactly the same as that originally imposed.
19. [19]
    The application presently before the Court was filed on 15 June 2001. It is described as an application for resentencing pursuant to s 188(1)(c), which provides:

“188 Court may reopen sentence proceedings

1. If a court has in, or in connection with, a criminal proceeding,including a proceeding on appeal -

..................

(c)imposed a sentence decided on a clear factual error of substance;

the court, whether or not differently constituted, may reopen the proceeding.”

The error must be one of fact; it must be one on the part of the Court; and it must be one at the time of sentencing.^[7]

20. [20]
    In the application the factual error was described in these terms -

“Their Honours imposed a sentence whilst being under a mistaken impression on a clear factual error of substance, in that:-

1. the sentence contained a reasonable expectation, at the time of sentencing, that the applicant would be entitled to parole on or about the 8th of March 1997; and
2. the laws that were applicable at the time of sentencing would not alter and that future laws would not adversely increase the punitive aspect of the applicant’s sentence.”

The application continued (in a form like that used for applications under the Judicial Review Act) -

“The applicant is aggrieved by the sentence because:-

1. The applicant had a legitimate expectation in that, by virtue of his sentence being reduced in accordance with s 13 of the Penalties and Sentences Act 1992,^[8] he would be released on parole on or about the 8th of March 1997 if he maintained good institutional conduct.
2. The applicant had a further legitimate expectation in that he would serve his sentence under the laws that were applicable at the time he was convicted and sentenced.”

21. [21]
    While there may well have been an expectation in the mind of the applicant that parole would be granted on or about 8 March 1997, the sentencing Court’s recommendation to that effect did not give rise to any such entitlement. The grant of parole was always dependent on a favourable decision from the parole board, which would take into account matters such as his behaviour while in custody, steps taken by him to address his previous offending behaviour and relevant ministerial guidelines.^[9] Similarly, any expectation of the sentencing Court that he would be eligible for parole on or about that date was conditional on future events. Neither the content of the applicant’s expectation nor that of any expectation on the part of the sentencing Court could be classified as a matter of existing fact upon which the sentencing Court was mistaken.^[10]
22. [22]
    It may be, as the applicant claims, that his failure to obtain parole is attributable to administrative problems. That would be reprehensible if it were so. However, the reason why he has not obtained parole is not a matter which this Court can determine. Moreover, any failure by the sentencing Court to foresee that administrative problems would affect the implementation of its parole recommendation could not be characterised as an error as to an existing matter of fact.
23. [23]
    In his application and in his written outline of submissions the applicant relied on the effect of legislative changes made since his sentence was imposed. I shall summarise the effect of those changes.
24. [24]
    As I have said, the applicant had been granted release to work in 1996 and home detention in 1997. In consequence of subsequent legislative changes, he has lost any chance of remission.  Section 207B of the Corrective Services Act 1988, which came into force on 24 November 2000, removed a prisoner’s eligibility for remission if (before or after the commencement of the section) he was granted release to work, release to home detention or parole. Section 75 of the Corrective Services Act 2000, which came into force on 1 July 2001, provides that a prisoner serving a term of imprisonment for an offence committed before the commencement of the section is not eligible for remission if, during the period of imprisonment, he has been granted release to work under the 1988 Act, release to home detention under the 1988 Act, parole under the 1988 Act or a post-prison community based release order under the 2000 Act.
25. [25]
    Section 135 of the Corrective Services Act 2000 standardises the point at which a prisoner becomes eligible for consideration for all forms of community based orders. That point is now the half-way point in the term of imprisonment, subject to s 157 of the Penalties and Sentences Act, which deals with eligibility for parole. Under the previous legislative regime, a prisoner was eligible for work release and also for home detention prior to the date on which he became eligible for parole.^[11]
26. [26]
    The applicant submitted both -

    1. that the sentencing Court had laboured under a mistake of fact that the laws applicable at the time of sentencing would not alter to his disadvantage, and

2. that the changes were invalid.

27. [27]
    A court’s decision, whether in civil or criminal proceedings, is necessarily based on the law at the time of the events in question or at the time of the decision. It is always impossible to predict with any certainty whether it will subsequently be changed and if so, how. The content of any expectation on the part of the sentencing Court that it would not be subsequently changed to the applicant’s disadvantage could not be classified as an existing matter of fact as to which it was mistaken.^[12]
28. [28]
    The validity of the legislative changes is not to be determined on an application under s 188 of the Penalties and Sentences Act, and it was not a matter on which the respondent made any detailed submissions. Nevertheless, out of deference to the applicant, I make the following observations.
29. [29]
    The offences of which the applicant was convicted were committed in Queensland. Even if, as he claimed, he is a resident of Victoria, the applicable criminal law is that of Queensland, the State where the offences were committed. Further, the legislative changes do not purport to impact on prisoners differently according to the State of which they are resident. Section 117 of the Commonwealth Constitution has no application to this case.
30. [30]
    The applicant submitted that the legislative changes are invalid because they are contrary to article 15 of the International Covenant on Civil and Political Rights, which provides

“Article 15

1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.
2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.”

The provisions of that covenant have not been enacted into Australian domestic law.^[13]

31. [31]
    The applicant referred to s 11(2) of the Criminal Code Act 1899. There is no such provision, and I assume he meant s 11(2) of the Criminal Code, which provides -

“(2)If the law in force when the act or omission occurred differs from that in force at the time of conviction, the offender cannot be punished to any greater extent than was authorised by the former law, or to any greater extent than is authorised by the latter law.”

Contrary to his submission, this does not “provide… statutory effect of the provisions of Article 15 of The Covenant” and it does not “honour.. the treaty entered into by the Commonwealth.” In any event, the provision does not assist him. This is not a case of a change in the applicable law between the commission of an offence and conviction, but of a change after conviction.

32. [32]
    Nor does s 180(1) of the Penalties and Sentences Act give effect to the covenant or otherwise assist the applicant. It provides -

“(1)If a provision of this or another Act increases the sentence, or the maximum or minimum sentence, for an offence, the increase applies only to offences committed after the commencement of the provision.”

The legislative changes in question do not purport to increase the sentence imposed on the applicant. Section 207B of the Corrective Services Act 1988 and s 75 of the Corrective Services Act 2000 merely provide that prisoners released from custody during their imprisonment, in the circumstances set out in the sections, shall not be eligible for remission.^[14] Section 135 of the 2000 Act merely standardises the eligibility date for all forms of community based release.

33. [33]
    I return to the applicant’s oral submission that in December 1993 the Court of Appeal acted contrary to s 668E of the Criminal Code in setting aside the sentence and imposing a term of imprisonment which was exactly the same as that originally imposed. Subsection (3) of that section provides -

“(3)On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.”

34. [34]
    The sentence imposed by the Court of Appeal consisted of a term of imprisonment cumulative upon the other sentence then being served, a declaration as to presentence custody under s 161 of the Penalties and Sentences Act and a recommendation for eligibility for parole under s 157 of that Act. It was a different sentence from that imposed by the Court below in two respects: it contained a declaration as to presentence custody and it made a different recommendation for parole eligibility. It is not to the point that the sentencing judge’s omission to make a declaration as to presentence custody could have been corrected by bringing the matter back before him under s 161(6). The Court of Appeal did not err as the applicant submitted. Moreover, its failure to foresee that its parole recommendation would not be implemented (for whatever reason) did not involve any error of law.
35. [35]
    In any event, the Court of Appeal did not labour under any misapprehension of fact in this regard, and so its decision could not be reopened under s 188(1)(c) of the Penalties and Sentences Act. Faced with that reality, the applicant placed some reliance on s 188(1)(a) which provides -

“(1) If a court has in, or in connection with, a criminal proceeding, including a proceeding on appeal -

(a)imposed a sentence that is not in accordance with the law; ..

the court, whether or not differently constituted, may reopen the proceeding.”

The scope of s 188(1)(a) was not fully canvassed in submissions before this Court, and it would not be appropriate to give a comprehensive ruling on it.^[15] Suffice it to say that it should not be interpreted as authorising a rehearing on the merits,^[16] which was really what the applicant asked this Court to do when he asked it to reduce the term of imprisonment to reflect his plea of guilty.

36. [36]
    The application should be dismissed.