R v Maguire[2001] QCA 55

SUPREME COURT OF QUEENSLAND

1. DAVIES JA:  I agree with the orders proposed by Williams JA and with his reasons.

2. WILLIAMS JA:  The applicant, Jay Leslie Maguire, seeks leave to appeal against a sentence imposed on 24 August 2000.  The only ground taken is that the "sentence is manifestly excessive in all the circumstances".  It became clear from submissions made by the applicant, who appeared on his own behalf, that his primary concern was the period he would have to serve in custody before becoming eligible for parole.  In order to appreciate the effect of the sentence imposed in August 2000, and the concerns of the applicant, it is necessary to begin with a sentence imposed on 22 September 1998.

3. On 22 September 1998 the applicant pleaded guilty in the Brisbane District Court to some 20 offences committed whilst he was on probation imposed on 15 April 1998 by the District Court. In April 1998 he had been dealt with for a total of 22 property offences.  The offences to which he pleaded guilty on 22 September 1998 included a number for entering either a dwelling or other premises and committing an indictable offence.  The head sentence was four and a half years imprisonment with a recommendation that he be considered for parole after serving 18 months thereof.  A declaration was made that he had spent a total of 118 days in pre-sentence custody.  The effect of that order was that his sentence of four and a half years was deemed to have commenced on 28 May 1998.  That made him eligible for full time discharge on 27 November 2002, for release with remissions on 3 June 2001, and eligible to apply for parole on 28 November 1999.

4. The applicant was released on parole on 17 January 2000, and whilst on parole committed the offences for which he was sentenced on 24 August 2000. He pleaded guilty on that date to one count of armed robbery with personal violence, two counts of burglary, three counts of entering a dwelling and stealing, two counts of entering premises and stealing, and one count of willful damage. All of the major offences occurred in the early morning of 19 February 2000 and involved properties at Nudgee. Four of the offences involved residential properties and a motor vehicle in Forrest Street, two involved residential premises in Oakmere Street, and one a residence in Penhill Street. The most serious, and possibly the last of those offences in point of time, involved premises at 17 Forrest Street. About 5.30am on 19 February the applicant entered that house after breaking a glass panel of a window and climbing through. The owner, a 65 year old retired pensioner, was awoken by the noise and confronted the applicant; he was then carrying a basket containing $150. The pensioner grabbed the applicant with both hands and pulled him into the kitchen. The applicant dropped the basket of money. The pensioner called out for his wife and son to call the police. The applicant began to struggle more fiercely with the pensioner after his wife announced that the police were on their way. A knife was produced by the applicant and in the scuffle the pensioner suffered a minor laceration and bruising to his right forearm. Thereupon the applicant was able to escape taking the $150. Those events gave rise to the count of armed robbery with personal violence and one count of burglary.

5. The applicant was caught in the area at about 7.00am after a lengthy foot pursuit involving the police dog squad. When apprehended he was found to be in possession of property taken from some of the premises he had entered that night.

6. The offences were particularly serious and were made more so by the fact that they were committed approximately one month after the applicant had been released on parole. The fact that he was virtually caught red handed meant there was little or no scope for remorse in his plea of guilty; nevertheless it has to be conceded that he pleaded guilty to all the charges.

7. Following his arrest on the morning of 19 February 2000 he was returned into custody and on 24 February 2000 his parole was cancelled pursuant to s 185 of the Corrective Services Act 1988 (Qld).  That meant that the applicant re-commenced serving the four and a half year sentence on 24 February 2000.  Section 190(1) of that Act provides that upon the cancellation of parole "no part of the time between the prisoner’s release on parole and the prisoner re-commencing to serve the unexpired portion of the prisoner’s term of imprisonment . . . shall be regarded as time served in respect of that term".  That meant that the applicant’s full time discharge date with respect to the four and a half year sentence was extended by 37 days (17 January to 24 February), making the full time discharge date 3 January 2003.

8. Consequent upon the cancellation of parole the recommendation contained in the sentence of 22 September 1998 had exhausted itself and ceased to operate (R v McCormick: ex parte Attorney General, CA 205 of 1999, 27 August 1999).  But s 191 of the Corrective Services Act 1988 provided that he could, in the future, be granted parole with respect to that sentence; the only legal barrier would be the requirement to serve one half of the four and a half year sentence (s 166(1)(d) of the Act).  One of the uncertainties which continues to exist in relation to the applicant’s imprisonment is the question whether or not he will be required to serve the whole of the balance of the sentence imposed on 22 September 1998.  Section 190(2) of the Act could also have an impact on that issue. 

9. The conviction consequent upon the plea of guilty to the offences committed 19 February 2000 has the effect of removing the applicant’s entitlement to remissions earned during the period he was in custody from 28 May 1998 to 17 January 2000; he had earned 199 days remission as at the time of his release on parole.  Those remissions were lost consequent upon the later conviction by operation of Regulation 28 of the Corrective Services Regulations 1989 (Qld).  However that Regulation also provided that he would be entitled to earn remissions with respect to the balance of the original sentence.  It was calculated that with remissions he would be entitled to release from the four and a half year sentence on 15 January 2002.  The judge dealing with sentence on 24 August 2000 was informed of that. 

10. However, subsequently to 24 August 2000, the Corrective Services Act 1988 was amended by the Corrective Services Act 2000; relevantly section 207B was inserted.  That section came into effect on 24 November 2000 and was retrospective in its terms.  Sub-section (1) thereof says that it applies to a prisoner who was, before the commencement of the section, released on parole under an order made under s 165; that catches this applicant.  Sub-section (3) then says that such a prisoner’s eligibility for remission "is taken to have been extinguished when the prisoner was released".  In other words regulation 28 no longer has effect and the applicant will not be entitled to earn remissions whilst serving the balance of the four and a half year sentence.  That means that his discharge date with respect to that sentence is 3 January 2003.  It can therefore be said that the applicant will probably be required to serve approximately 50 weeks longer pursuant to the earlier sentence than was represented to the judge imposing sentence on 24 August 2000.

11. One of the offences to which the applicant pleaded guilty on 24 August 2000 was robbery. It is an offence mentioned in the Schedule of Serious Violent Offences to the Penalties and Sentences Act 1992 (Qld); therefore by operation of s 156A of that Act (because the applicant was on parole at the time of committing the offence) a sentence of imprisonment imposed for the offence of robbery must be ordered to be served cumulatively with the balance of the earlier sentence.  In Booth (1999) 105 A Crim R 288 McPherson JA (with whom Thomas JA and White J agreed) said at 295:

"It would have been a wrong exercise of the sentencing discretion to attempt to circumvent that quite specific legislative direction by reducing the sentence currently being imposed so as to reinstate the practice which section 156A(2) has plainly displaced.  In the present context, the only relevant function of the totality principle in sentencing for offences committed some time apart formerly was to offset the impact of ordering them to be served cumulatively.  Ordering that they be cumulative is what the sentencing judge is now required by section 156A(2) to do in the case of sentences for offences committed on parole."

12. Consequently, once the appropriate sentence for the robbery is determined it should not be discounted to any extent because of the circumstance that it must be served cumulatively.

13. The head sentence imposed on 24 August 2000 for the indictable offences to which the applicant pleaded guilty was five years imprisonment to be served cumulatively with the other sentences the applicant was serving, principally the balance of the four and a half years imposed on 22 September 1998. The learned sentencing judge made a recommendation that he be eligible for parole after serving 20 months of that sentence, and declared that there was a period of six days pre-sentence custody (19 February to 24 February 2000).

14. The attention of the learned sentencing judge was drawn to the decision in McCormick and it is clear that his recommendation for parole was made only with respect to the five year sentence.  The recommendation was made pursuant to sub-section (2) and not sub-section (3) of s 157 of the Penalties and Sentences Act.  As the earlier recommendation was "exhausted" it was not "a current recommendation" or an "existing recommendation" and therefore sub-section (3) thereof could not apply (see McCormick, R v Doyle [1996] 1 Qd R 407, Burton (1995) 83 A Crim R 453, and Cutajar (1995) 85 A Crim R 280).

15. Given what I have said previously the applicant would commence serving the five year sentence on 4 January 2003. That means that his full time discharge date would be 29 December 2007 (five years from 4 January 2003 less six days pre-sentence custody). It also means that he would be eligible for parole on 29 August 2004 (20 months from 4 January 2003 less six days pre-sentence custody). Those dates accord with the current calculation by the Department of Corrective Services which was mentioned to the Court on the hearing of the application. Such a calculation is also in accordance with that adopted by this court in McCormick and Booth.

16. The question is whether or not in all the circumstances such a sentence is manifestly excessive.

17. The plaintiff is still a young man; he was born on 15 April 1980. However he has an extensive criminal history. In the Children’s Court in 1996 and 1997 he was dealt with for numerous offences. Quite a number were apparently graffiti related. More importantly, he was dealt with in the Children’s Court on 23 August 1996 for an offence of breaking, entering and stealing.  On 14 May 1997 he was again dealt with in the Children’s Court with respect to an offence of breaking and entering a dwelling house with intent.  On the same date he was also dealt with for an offence of stealing with actual violence and given a period detention followed by 12 months probation.  He was dealt with in the Brisbane Magistrates Court on 26 August 1997 for possession of a dangerous drug; a fine was imposed.

18. His first appearance in the District Court was on 15 April 1997 when he was dealt with for a number of offences, including 16 wilful damage offences, house breaking, stealing and robbery with personal violence. He was convicted, and ordered to be imprisoned for six months followed by three years of probation. That was followed by his sentence on 22 September 1998 which has already been extensively canvassed.

19. The learned sentencing judge recognised the applicant’s cooperation with authorities, and the plea of guilty, by making the recommendation for parole.

20. In his sentencing remarks the judge referred to the fact that the applicant had "an unfortunate upbringing in some respects". Applicant’s counsel at sentence referred amongst other things to difficulties the applicant had in his relationship with his stepfather. The applicant began using marijuana when he was quite young and first used heroin and amphetamines when aged about 16. The court was told he had been diagnosed as having Hepatitis C. He had never been employed.

21. As a review of the criminal history indicates that from age about 16 the applicant had been subject to a variety of orders placing him under supervision. He has been granted probation on numerous occasions but has always re-offended shortly after. There has been a progression from petty crime to serious crime.

22. The offences committed on 19 February 2000 were serious. The circumstance constituting the offence of armed robbery with personal violence indicate the seriousness of the applicant’s current criminal behaviour.

23. It cannot be said in my view that a sentence of five years imprisonment was manifestly excessive. Given his age it may well be towards the top of the range (counsel for the applicant before the sentencing judge indicated the range was four to five years) but that does not make it excessive.

24. The remaining issue canvassed on the hearing of the application was with respect to the applicant’s parole. As noted the effect of the recommendation that he be eligible to apply for parole after serving 20 months of the five year sentence is that he becomes so eligible on 29 August 2004. If no such recommendation had been made then by operation of s 166(1)(d) of the Corrective Services Act he may have been eligible to apply for parole after having "served half of the term of imprisonment" to which he was sentenced.  "Term of imprisonment" is defined in section 10 of that Act as being "the unbroken period of imprisonment a person is liable to serve by virtue of a number of sentences, whether ordered to be served concurrently or cumulatively and whether imposed at the same or at different times".  The applicant was serving sentences of four and a half years and five years, making therefore a total period of imprisonment of nine and a half years.  Because of pre-sentence custody, as noted above, that sentence commenced on 28 May 1998.  One disregards the 37 days he was on parole, but that must be reduced by six days as being pre-sentence custody with respect to the five year sentence.  So 31 days must be added to the period he is required to serve before he would become eligible.  If s 166(1)(d) applied, on my calculation he would have become eligible for parole on 31 March 2003.

25. It will be remembered that the sentencing judge proceeded on the basis that with remissions the earlier sentence would have ended on 15 January 2002; in that case the five year sentence would have commenced to run from 16 January 2002. If that was the starting point, and the applicant eligible for parole after serving 20 months, he would have been eligible to apply for parole on 16 September 2003.

26. The position can therefore be summarised as follows. The applicant’s full time release date is 29 December 2007. Calculating his eligibility for parole strictly in accordance with the order made on 24 August 2000 gives a parole date of 29 August 2004.  Calculating that date on the figures given to the sentencing judge results in the applicant being eligible to apply for parole on 16 September 2003.  The eligibility date calculated in accordance with s 166(1)(d) of the Corrective Services Act is 31 March 2003.

27. In my view there is some force in the submission made by counsel for the respondent that where a recommendation can only be made with respect to the later imposed cumulative sentence (s 156A and s 157 of the Penalties and Sentencing Act) it is inappropriate to have regard to s 166(1)(d) of the Corrective Services Act.  To do so, it was submitted, would be tantamount to disregarding the new sentencing regime imposed by s 156A and s 157 and be an approach contrary to the reasoning of this court in Booth.  But ultimately it is not necessary to finally decide such issues.

28. In my view effect should be given to what was seen by the learned sentencing judge as the appropriate date for parole, namely 20 months from 16 January 2002. The sentence imposed should therefore be varied to delete the existing recommendation for parole and in lieu thereof there should be a recommendation that the applicant be eligible for parole on 16 September 2003. With a full term release date of 29 December 2007 that would mean that he would be subject to parole for some four years before full term release. He would thus be aged 27 when finally released from the consequences of all the sentences imposed.

29. The orders of the Court should therefore be: Grant leave to appeal. Allow the appeal to the extent of deleting the recommendation that the applicant be eligible for parole after serving 20 months and in lieu thereof insert a recommendation that he be eligible to apply for parole on 16 September 2003. Otherwise the sentence should stand.

30. MACKENZIE J:  I have had the opportunity to read the reasons prepared by Williams JA and agree with them and with the orders proposed.

31. In the past, where a cumulative sentence has been imposed but the potential existed for remission of the preceding sentence to be gained, it has been notoriously difficult for a trial judge to be confident that a contemplated outcome would be achieved by making a parole recommendation of particular duration. In some cases remission would be granted fully. In some cases remission would be refused for reasons within the prisoner's control. In other cases it would depend on an assessment of other relevant factors made by the relevant authority.

32. In the present case, at the time of sentencing on 24 August 2000, the submissions proceeded on the basis that the applicant would be eligible to earn remissions on the balance of his earlier sentence. Potentially, he could have finished that sentence, with remission, on 15 January 2002 but for the change in the law brought about by the coming into force, with retrospective operation, of s 207B of the Corrective Services Act 1988.  The intervention of that legislative provision after sentence but before the appeal was heard has the consequence that the factual information before the learned sentencing judge as to when the cumulative sentence imposed by him might commence no longer applied.

33. In the circumstances of the case the orders proposed by Williams JA are in my view appropriate.