R v Dobie[2004] QCA 140

SUPREME COURT OF QUEENSLAND

[1]  de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Davies JA.  I agree with the orders proposed by His Honour, and with his reasons.

DAVIES JA:

This application

[2] This is a purported application to re-open a sentence imposed on the applicant in the District Court on 7 February 2001.  An appeal against that sentence was dismissed by this Court on 27 April 2001 and an application to re-open it was dismissed by the District Court on 13 February 2002.

[3] The application is purportedly made under s 188(1) of the Penalties and Sentences Act 1992.  However as it seems plain that this is not the court that imposed the sentence, within the meaning of s 188, the only order which this Court could make on that application would be one remitting the application to the District Court either by exercising the powers conferred under s 671B of the Criminal Code or s 68(2)(b) of the Supreme Court of Queensland Act 1991:  R v McQuire [2004] 1 Qd R 685 at [15].  However it would do that only if there were some prospect of success in an application pursuant to s 188 now being made to the District Court such that, in the circumstances, it would be appropriate to allow time beyond 28 days from the date the sentence was imposed within which to allow such an application:  s 188(5);  R v McQuire.

[4] Perceiving the difficulties in an application to this Court to re-open that sentence, Mr Smith for the applicant, on the hearing of this application, applied for an extension of time within which to seek leave to appeal against the dismissal by the District Court on 13 February 2002 of an application to re-open this sentence.  The court reserved its decision on that application.  However much the same problem confronts the applicant in that application;  that is, that this Court would not grant it unless it had some prospect of success.

The relevant facts

[5] On 15 January 1999 the applicant was ordered in the District Court to serve 18 months of a previously suspended sentence and sentenced to three years imprisonment to be served cumulatively.  On 25 May 1999 the sentence of three years was reduced by this Court to two years making the total sentence one of three and a half years imprisonment instead of four and a half years imprisonment.

[6] On 13 December 1999 the 18 month sentence expired and on the following day the applicant commenced serving the cumulative two year sentence.  He was released on home detention on 10 July 2000.  On 19 October 2000 he was arrested in respect of the offences the subject of the present matter and his home detention was revoked.  His parole was cancelled on 24 October 2000.[1]

[7] On 7 February 2001 the applicant was sentenced for the subject offences, which were Commonwealth offences, to concurrent terms of three years imprisonment to be released after nine months, to commence at the expiration of the sentence he was then serving.  In imposing those cumulative sentences, the learned sentencing judge thought, as he was told without opposition, that those sentences would commence on 10 January 2002.  His appeal against that sentence was dismissed by this Court on 27 April 2001.

[8] The period to 10 January 2002 included a period from 14 December 2001 until 10 January 2002 for unpaid fines.  Once the sentence of 7 February 2001 was imposed the applicant was no longer required to serve this period.  The respondent therefore contended that the current sentences commenced on 14 December 2001.

The question sought to be litigated

[9] The applicant wishes to contend that the commencement date of the sentences imposed on 7 February 2001 was not, as the respondent contended, 14 December 2001 but 27 October 2000.  If that contention were correct, and had been pointed out to the learned sentencing judge, it seems most likely that his Honour would have imposed a heavier cumulative sentence for it seems plain that his Honour imposed the cumulative sentences which he did on the basis that they would expire three years after 10 January 2002, the applicant to be released nine months after that date.

[10] His Honour said expressly in the course of the hearing of the application for re-opening on 13 February 2002, that if the applicant's contention that the commencing date for the cumulative sentences was not, as he had thought, 10 January 2002 but 27 October 2000, he probably would have imposed sentences which were longer by 15 months than those which he did impose.  In other words his Honour thought that the overall criminality required a sentence expiring when his Honour was told it would.  Similarly this Court dismissed the applicant's appeal on the basis that sentences which expired three years after 10 January 2002, the applicant to be released nine months after 10 January 2002, were not manifestly excessive sentences in all the circumstances.

Section 188 and its application to this case

[11]  Section 188 is relevantly in the following terms:

"(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;  or

(b)failed to impose a sentence that the court legally should have imposed;  or

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

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

… "

[12]  The applicant relies on each of those paragraphs.  The respondent contends that none of them has any application to the question of the correctness of the applicant's contention.

[13]  As to paragraphs (a) and (b) the respondent contends that these refer only to jurisdictional errors by the court, relying on what Mackenzie J said in R v Abbott [2001] QSC 281.  In that case it was accepted on both sides that s 188(1)(a) and (b) are concerned only with correcting sentences which cannot be imposed according to law;  and that an error of law not going to jurisdiction cannot be corrected under the section.  His Honour agreed with that view.  However in R v Stephenson [2001] QCA 407 Wilson J, with whose reasoning Thomas JA and White J agreed, left that question open.

[14]  There is no question of jurisdictional error here.  The question sought to be argued here is whether, in accepting that the applicant's prior sentence expired on 10 January 2002 not, as the applicant contends, on 26 October 2000, the learned sentencing judge erred.  The applicant submits that this is an error of law;  substantially because of the failure to apply s 19(1)(b) of the Crimes Act 1914 (Cth).

[15]  In my view s 188(1)(a) and (b) are not limited in their operation to jurisdictional error.  The section from which it was derived, in part, s 147A(1) of the Justices Act 1886, does not seem to have been given such a limited operation.[2]  It also seems there is nothing in the terms of s 188 from which such limitation should be implied.[3]  It therefore follows that if the applicant is correct in his submission that his Honour erred in failing to apply s 19(1)(b) of the Crimes Act and consequently erred in accepting, as the date of commencement of the cumulative sentences, 10 January 2002, and that this led to the imposition of erroneous sentences, the applicant would be entitled to have the sentences re-opened under s 188.

[16]  It also seems plainly to follow, from the way in which the applicant has stated his argument, that the applicant does not contend that the learned sentencing judge's apprehension that the sentence which he imposed would commence immediately after 10 January 2002 was based on a clear factual error of substance.  The substantial argument, in short, is that 27 October 2000 was the parole eligibility date under the applicant's earlier sentence and that s 19(1)(b) required that that date be the commencing date of any cumulative sentence imposed.

Section 19(1)(b) and its application to this case

[17] Section 19(1) is in the following terms:

"Where a person who is convicted of a federal offence or federal offences is at the time of that conviction or those convictions, serving, or subject to, one or more federal, State or Territory sentences, the court must, when imposing a federal sentence for that federal offence, or for each of those federal offences, by order direct when the federal sentence commences, but so that:

(a)no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences;  and

(b)if a non-parole period applies in respect of any State or Territory sentences–the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period."

[18]  The term "non-parole period" is defined, in relation to a sentence or sentences of imprisonment, as meaning "that part of the period of imprisonment for that sentence or those sentences during which the person is not to be released on parole, whether that part of the period is fixed or recommended by a court or fixed by operation of law".

[19]  It may be noted that s 19(1)(b) speaks in the present tense:  "applies".  Thus it requires for its operation the existence of a non-parole period applying in respect of a State or Territory sentence at the time when a federal sentence is being imposed.

[20]  When the relevant State sentence was imposed on 15 January 1999 no non-parole period was fixed or recommended by the court which imposed the sentence.  However, at that time, s 166(1)(d) of the Corrective Services Act 1988 provided that the applicant was not eligible for release on parole until he had served half the term of imprisonment to which he was sentenced.  It may be accepted that that was a non-parole period fixed by operation of law.  That was also the case on 25 May 1999 when the sentence of three years imposed in the District Court was reduced by this Court to two years.  However that non-parole period of one year from 13 December 1999, the date on which the two year sentence commenced, had expired well before 7 February 2001 the date on which the applicant was sentenced for these offences.  Consequently, it seems to me that, when these sentences were imposed there was no non-parole period applying in respect of the State offence.  Section 19(1)(b) therefore had no application at the time the applicant was sentenced for these offences.

[21]  It may be added that the construction which the applicant would place on s 19(1)(b) would have the very odd consequence, as this case illustrates, of a sentence imposed by the court commencing before the time it is imposed.  If there were any doubt about the correct meaning of s 19(1)(b) I would construe it in a way which would avoid that odd result.  The intention of s 19 as a whole appears to be plainly to ensure that there is no gap between the end of a sentence which an offender is serving at the time when he or she is convicted for a federal offence and the commencement of the sentence for that federal offence.  The construction which I have adopted here gives effect to that purpose.

The argument about remissions

[22] The applicant accepts that by reason of s 207B of the Corrective Services Act 1988, when he was released on home detention his entitlement to remissions on the sentence which he was then serving was extinguished.[4]  However he submits, as I understand it, that the fact that he had thereby lost remissions which he submits amounted to nine months in all, should have required the learned sentencing judge to take that loss into account in order to ensure that the totality of the sentence imposed was not unduly burdensome.  In my opinion there is no substance in that submission.  His Honour was not obliged to make some allowance for a change in the law that was a burden which the applicant, along with all other prisoners, was obliged to endure.  It could have no effect on any subsequent sentence imposed.

[23]  It follows from what I have said so far that both the original application and the application for an extension of time for which Mr Smith applied at the commencement of the hearing of this appeal, must fail.  There is one additional matter, to which I have already referred, which, in my opinion, also makes these applications pointless.

[24]  It is plain that the learned sentencing judge, in imposing the sentence which he did, thought that a sentence ending on the day which the sentence which he thought he had imposed would end and permitting release on the day on which, under that sentence, he thought that the applicant would have been released, was appropriate.  It is true that his Honour imposed that sentence on the assumption that it would commence on or about 10 January 2002 but, had his Honour thought that it commenced at an earlier date, he would still have imposed a sentence ending on or about the date on which he thought this sentence would end with release on the date on which he thought that, under the sentence which he imposed, the applicant would be released.  And this Court, on appeal from his Honour plainly thought that a sentence ending on the date on which that court, like his Honour, thought it would end with release on the date on which this Court, like his Honour, thought that the applicant would be released, was not manifestly excessive.  It follows that, even if the applicant could have established an error of the kind which came within s 188(1)(a) or (b) he would not have received, on a re-opening under that section, a sentence lower than that which he in fact received.

Orders

1. Dismiss the application to re-open the sentence imposed in the District Court on 7 February 2001.

2. Dismiss the application for an extension of time within which to appeal against the refusal of the District Court on 13 February 2002 to re-open this sentence.

[25]  HOLMES J:  I agree with the reasons for judgment of Davies JA and with the orders he proposes.