R v Duong[2004] QCA 164

SUPREME COURT OF QUEENSLAND

THE PRESIDENT:  Mr Justice Chesterman will deliver his reasons first.

CHESTERMAN J:  On 8 August 2001, the applicant was sentenced in the District Court for a number of offences for which he had pleaded guilty.  Most relevantly, and most seriously, was an offence of robbery.

Describing the circumstances Judge Noud said:

"In fact it is one of the most serious offences that come before this Court and I regret to say that it is a very bad instance of it, the one that you took part in and you were a significant player in the commission of these crimes...

There was a large amount of money involved and the violence, in my opinion, was very serious indeed.  Even the circumstances surrounding the commission of the offence...indicated a deliberateness on your part and a preparedness to take part in violence...  The Court must take a stand in relation to that and pass a sentence which will have an effect, not only upon you, but also to deter others."

His Honour indicated expressly that he was not prepared to suspend or partly suspend the sentence because he thought that the applicant should be subject to the supervision of parole after his release from prison.

Taking into account circumstances personal to the applicant, in particular his youth, the learned judge recommended "that you be released on parole after you have served two years' imprisonment."  It should be pointed out that the applicant had spent almost a year in gaol prior to being sentenced for those offences.

The applicant was not released from custody after serving two years.  He in fact is still in custody.  Three years and eight months have now passed since he was sentenced, taking into account the pre-sentence custody.

An application was made to the learned judge to re-open the sentence because of the fact that he was not released after two years. 

Section 188(1) of the Penalties and Sentences Act 1992 provides that:

"If a Court has in, or in connection with, a criminal proceeding,...imposed a sentence decided on a clear factual error of substance the Court...may re-open the proceeding."

An application was made, as I have said, to his Honour Judge Noud to re-open the sentence on the basis that it had proceeded on a clear error of fact of substance.

The error of fact is not entirely easy to identify despite the very thorough and earnest argument addressed to the Court by Mr Marais on behalf of the applicant.

In essence the submission is that the applicant was required by the Corrective Services authorities to undertake a number of courses to address his offending behaviour and to demonstrate in effect that he was suitable for release back into the community.

The duration of those courses and the time of their availability meant that the applicant could not complete them all within the two year period which formed the subject of the recommendation by the trial judge, particularly when almost a year of that time had been spent in pre-sentence custody.

There is a further complication, that is the applicant's process through the prison system, as it's been called, more appropriately the applicant's performance of the programs has been less than satisfactory. 

He was required by the Corrective Services authorities to undertake a program called the Violence Intervention Program, the duration of which is about nine months.  He was initially assessed as being suitable to undertake that program but refused to comply with its preconditions.  He then reconsidered and agreed to comply but by that stage the available places had been filled.  He could not then be fitted into a program until 5 July 2003.  Unhappily the applicant did not complete the program.  One of its requirements was that he write a letter to the victim of his robbery and he refused to do that.  For that reason he was excluded from the course and has not completed it.

These facts which explain, as far as we can tell, why the applicant remains in custody form the basis for his application.  But they are, it seems to me, impossible to describe as an error of fact made by the sentencing judge when on 8 August 2001 he imposed the sentence.

His Honour, as I have said, recommended that the applicant be released on parole after serving two years.  What section 157(2) of the Penalties and Sentences Act in fact provides is that:

"If a Court imposes a term of imprisonment of more than 2 years...it may recommend that the offender be eligible for post-prison community based release only after serving a specified part of the term."

Properly, the recommendation made in this case should have been that the applicant be eligible for post-prison community-based release having served two years.  The wording of the recommendation, that he be released after two years, perhaps raised in the applicant an expectation that went beyond what section 157 in fact allows.

Be that as it may, it cannot be said that the applicant obtained no benefit from the recommendation because, by virtue of section 135 of the Corrective Services Act a post-prison community-based release order may start in accordance with the time specified by a judge making a recommendation pursuant to section 157 of the Penalties and Sentences Act.  In other words, the applicant here became eligible to start a post-prison community-based release order having served two years rather than the time which otherwise would apply, that is half his sentence.  That would follow from section 135(2)(e).

The fact that the applicant was not given such a release order after having served two years cannot, it seems to me, be categorised as an error of fact in the sentencing process.

The learned judge expressly recognised that his recommendation may not be accorded recognition by the Corrective Services authorities.  He pointed out, obviously enough, that whether or not the applicant was released on a post-prison community-based order depended upon the assessment of the authorities of the applicant, taking into account all facts known to the authorities, including those which became known during his incarceration.

The judge had an expectation that his recommendation would be given effect as a fact to take into account in making the decision whether he should be released.  That is the most that can be said about it and his Honour himself recognised that when refusing the applicant to re-open the sentence.

The matter seems to me to be concluded by a decision of this Court in R v Cassar [2001] QCA 300.  In a judgment given by the Court it was said that:

"Under section 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...in re-opening the proceedings was neither clear...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...It is so obvious it should go without saying...that it does not follow that because the 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."

It is not altogether easy to reconcile those remarks and that decision with the decision of this Court in R v MacKenzie [2000] QCA 324.  It seems to me that MacKenzie was a very special case and it should be confined to its rather special facts.

Speaking generally, on the authority of Cassar, the fact that a judge's recommendation as to the date on which a prisoner should be eligible for parole has not been realised is not an error of fact sufficient to, or sufficient to justify a re‑opening of the sentence under s 188.

For these reasons I would dismiss the appeal. 

I should perhaps mention that I was initially concerned at the length of time this applicant has spent in prison.  He was 17 when he committed the offence of robbery and his youth was clearly a factor which concerned the learned sentencing judge.  He has now been in gaol three years and eight months which seems a substantial period and certainly longer than that contemplated by the judge.

I say no more about it because there are indications in the material that it is the prisoner's own conduct while in prison that has led to his assessment as being unsuitable presently for release into the community.

THE PRESIDENT:  I agree, subject to the following brief observation. 

This case is distinguishable from R v MacKenzie [2000] QCA 324; CA No 353 of 1999, 20 October 2000.  The Court of Appeal under s 188 Penalties and Sentences Act 1992 (Qld) there re-opened a sentence it imposed when re-sentencing after having allowed an appeal against sentence.  Material before the Court on the re-opening explained that the Court of Appeal, when it re-sentenced, was not aware that its early recommendation for release on parole could not be effected because there was no scheduled review of MacKenzie's sentence before her release date and that was because the Community Correctional Authorities were acting on the basis of the original sentence and not the re-sentence of the Court of Appeal.

As I observed in MacKenzie at paragraph [10], MacKenzie turns very much on its own special facts.  It is not appropriate to re-open a sentence under s 188 merely because a judicial recommendation for parole was not subsequently followed by the Community Corrections Board.  I also note the additional observations of this Court in R v Cassar; ex parte Attorney-General [2002] 1 QdR 386, [12]-[14].

I particularly note my agreement with Mr Justice Chesterman's observations and concerns about the youthfulness of this offender and the period of time he has now spent in custody in respect of his sentence. 

The application for leave to appeal should be refused.

ATKINSON J:  I agree that the appeal against the learned sentencing Judge's refusal to re-open the sentence should be dismissed for the reasons given by the President and Mr Justice Chesterman. 

THE PRESIDENT:  That is the order of the Court, thank you.