R v Massey[2002] QCA 312

SUPREME COURT OF QUEENSLAND 

[1] McPHERSON JA:  The application for leave to appeal should be dismissed for the  reasons given by Williams JA.

[2] WILLIAMS JA:  This is a somewhat unusual application for leave to appeal against sentence.  The applicant was sentenced to life imprisonment consequent upon pleading guilty to a charge of murder; in consequence he was sentenced to life imprisonment, the only sentence which could have been imposed.  He had been arrested on that charge on 2 November 1999, and was sentenced on 31 January 2002.  He had been in custody for the whole of that intervening period.  Pursuant to s 154(a) of the Penalties & Sentences Act 1992 (the Act) the sentence started from 31 January 2002.  The learned sentencing judge considered that there was no way he could give the applicant credit for time spent in pre-sentence custody, and it is that which is the subject of the application for leave to appeal against sentence.

[3] The murder was a particularly savage one, to use a term adopted by the learned sentencing judge in his remarks on sentence.  The applicant had known the deceased, Benney, for some time prior to the crime being committed on or about 25 October 1999.  Benney was a drug user and the applicant, if not a user, was a producer of dangerous drugs.  The applicant had previous convictions in 1996 and 1997 for production of a dangerous drug.  Both of them either resided at or visited a house at 23 Lavercombe Street, Kallangur, which was frequented by people who were drug users.  It appears from material placed before the court on the plea of guilty that Benney asked the applicant to get two ounces of speed for him to take to Toowoomba.  Apparently the applicant, and some of his associates, thought that Benney “might have been trying to set them up”.  That was apparently the motivation for the killing.

[4] Benney was killed by the infliction of severe blows to his head which caused massive damage to his skull and severe brain damage.  There were severe and extensive underlying skull fractures particularly towards the forehead.  The blows completely destroyed the roof of both eye sockets.  There was severe fragmentation and collapse of the nasal structures and fractures of the cheeks.  There were at least seven significant blows to the head.  The body was found dumped off what was described as a country road. 

[5] Police investigations established that the attack had taken place at 23 Lavercombe Street; blood matching that of the deceased was found there.  The police also located a hammer on which there were two blood spots matching the deceased’s blood.  That hammer had the words on one side “the punisher” and on the other side “no mercy”.  The police also located a Tarago van which had been loaned to the applicant and was obviously used to transport the body; it was heavily blood-stained with the deceased’s blood.  It can be seen that the murder was a particularly brutal and callous one. 

[6] The applicant was located by police in Cairns on 2 November 1999.  He was arrested on that date with respect to the murder, but he was also charged with some 22 other offences.  It would appear that a number of those “other offences” may have been warrants for non-payment of fines.  The other offences on which the applicant was arrested on 2 November 1999 effectively became the 14 counts detailed on an indictment dated 18 July 2002 presented to the District Court at Brisbane.  There were five counts of stealing, five counts of unlawful use of a motor vehicle, one count of deprivation of liberty, one count of wilful damage, and two counts of assault occasioning bodily harm with circumstances of aggravation.  The applicant pleaded guilty to all of those charges on 1 August 2002 before Senior Judge Skoien.  On the two counts of assault occasioning bodily harm with circumstances of aggravation a sentence of four years imprisonment was imposed, and on each of the other offences he was sentenced to imprisonment for two years. All those sentences were to be served concurrently.  In the course of his sentencing remarks his Honour said:

“I want you to know that I’ve actually reduced all of those head sentences by some amount – I am not going to disclose how much – but some substantial amount to take into account, in the ordinary exercise of my discretion, the long time you were on remand”.

[7] With respect to the matters dealt with by Judge Skoien the following features should be noted.  The first count of assault occasioning bodily harm occurred on 3 October 1999, and the victim was the person who was unlawfully deprived of his liberty for a considerable period of time.  The complainant was punched or otherwise assaulted on numerous occasions whilst kept a virtual prisoner in a motor vehicle.  The applicant was accompanied by another male person throughout the period.  The second incident of assault occasioning bodily harm occurred on 16 October 1999.  Following an incident of “road rage” the applicant, and a male accomplice, followed the complainant and eventually cornered him.  The applicant and his accomplice assaulted the complainant, including by the use of an iron bar and a baseball bat.

[8] That the applicant is a violent criminal is confirmed by the fact that his criminal history contained a conviction for assault occasioning bodily harm whilst armed with an offensive weapon on 22 November 1996.  He was sentenced to 12 months imprisonment for that offence. 

[9] By operation of s 135(2)(b) of the Corrective Services Act 2000 the applicant would have to serve at least 15 years imprisonment pursuant to his life sentence before becoming eligible for post-prison community based release.  Given the sentence imposed that period would commence to run on 31 January 2002 and no period of pre-sentence custody would be taken into account.  It is that circumstance which gives rise to this application.  When time spent serving periods in default of paying fines are deducted the applicant was in pre-sentence custody for 755 days.

[10] It is not irrelevant to observe that with the applicant’s history of appalling callous violence it is highly unlikely that he would be considered for release into the community after serving only 15 years of his life sentence.  Judge Skoien had to make the sentences he imposed concurrent, because there cannot in law be a cumulative sentence upon a life sentence.  Were that not the case one would ordinarily expect at least the more serious of the offences dealt with by Judge Skoien to have carried a penalty which was cumulative on any other sentences the offender may have been serving.

[11] Prior to 1992 sentencing judges used various methods, such as reducing the length of the head sentence or fixing an earlier eligibility date for parole, in order to give credit for time spent in custody prior to sentence.  The methods used were not precise and often resulted in apparent inequality between sentences imposed on comparable offenders.  It was undoubtedly with a view to introducing certainty into this aspect of the sentencing process that provisions such as s 161 of the Act were introduced.  The relevant provisions of s 161 for present purposes are:

“(1)If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence and for no other reason must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders.

…

(4) If –

(a) an offender is charged with a series of offences committed on different occasions; and

(b) the offender has been in custody continuously since arrest on charges of the offences and for no other reason;

the time held in pre-sentence custody must be taken, for the purposes of subsection (1), to start when the offender was arrested even if the offender is not convicted of the offence for which the offender was first arrested or any other offences in the series.”

[12] Paragraph (1) did not apply to this applicant because he had not been held in custody for the 755 days for no other reason than the offence of murder.  It may well be that if all the offences were being considered at the one time that paragraph would have applied, but it is not necessary for this court now to decide that; the fact is all the offences in question here were not dealt with at the one time.

[13] The submission by counsel for the applicant was essentially based on sub-section (4).  That gave rise to the question, what constituted a “series of offences”.  That was the subject of some consideration by this court in R v Fox [1998] QCA 121.  Therein Pincus JA stated the view that the “word ‘series’ implies some sort of connection between the offences”.  But he went on to point out that it was clear from the wording of the provision that the offences “need not be committed on the same occasion”, nor was it necessary that arrests with respect to all of the offences take place at the same time.  In the end he said he could “reach no conclusion” as to what was meant by the phrase.  In his reasons McPherson JA (with whom Thomas J agreed) observed that the expression “charges of the offences” in (4)(b) must refer back to the “series of offences” described in (4)(a).  Though the charges with which the court was there primarily concerned (one of murder, two of attempted murder, and one of intentionally doing grievous bodily harm) could be treated as a “series of offences”, Fox relevantly was in custody with respect to other earlier charges pending against him.  This court held that in the circumstances Fox was not entitled to any credit for time spent in pre-sentence custody.

[14] It seems clear that this court would have to depart from the reasoning in Fox if it were to find in favour of the present applicant.  I can see no reason for so doing.

[15] The question was also considered by this court in Lace [2002] QCA 205.  Lace was charged with a murder committed on 7 July 1999 and was arrested on or about 9 July.  He was convicted of murder on his first trial on 1 November 2000 and sentenced to life imprisonment.  On 30 January 2001 he was also sentenced to 12 months imprisonment concurrent with his life sentence for the offence of breaking and entering a dwelling.  On 4 July 2001 the Court of Appeal allowed his appeal against conviction and ordered a retrial.  He was convicted at his retrial on 16 November 2001.  Lace initially contended that he was entitled to a declaration under s 161 of the Act that the period from 30 January 2001 to 4 July 2001 was time already served under the sentence.  It seems from the judgment of Wilson J, with whom Helman J agreed, that by the time the matter was argued in this court his counsel merely sought some “informal expression of opinion” that the period from 30 January to 4 July 2001 ought to be taken into account “in calculating the point at which he is eligible to apply for post-prison community based release”.  The court did not make any determination in favour of the applicant.

[16] Deciding that the applicant here has no entitlement to have the 755 days of pre-sentence custody taken into account does not affect the reasoning of this court in R v Skedgwell [1999] 2 Qd R 97.  The court there recognised that s 161(1) of the Act was not an exhaustive statement of a sentencing court’s power to take into account a period of pre-sentence custody when arriving at the appropriate sentence.  Where appropriate, in the exercise of the general sentencing discretion, the court might regard a period of such custody as a factor which might operate in mitigation, by reducing the head sentence, or by accelerating the date for consideration for parole.

[17] But, of course, the approach referred to in Skedgwell cannot be applied where a mandatory life sentence is imposed.  It is really only in those cases that the problem with which the court is now confronted will arise.  As counsel for the Crown pointed out, that is not necessarily an anomaly created by the Act; it has always been the position with a life sentence.

[18] Given this applicant’s criminal history particularised above, it is doubtful that in practical terms the inability of the court to declare that the 755 days is time served pursuant to the life sentence will be of significance.  It would be for the legislature to intervene if it was considered that, looked at generally, it was only fair and just that time spent in pre-sentence custody should be brought into account where a mandatory life sentence is imposed because of its relevance in determining the date upon which the offender becomes eligible to apply for parole.

[19] However, it is clear that, as Pincus JA noted in Fox, the legislature intended by s 161(4) that there be some alleviation of the position of an offender in custody in respect of more than one offence.  But as that provision is so ineptly worded it is difficult, if not impossible, to apply it in any given situation.  Consideration should be given to amending the provision to clarify its intent.

[20] It follows that the present application should be dismissed.

[21] HOLMES J:  I agree with the reasons for judgment of Williams JA and with the order he proposes.