SUPREME COURT OF QUEENSLAND

[1]  JERRARD JA: On 11 May 2007 this Court heard an application by Mr Harris-Davies for an extension of time within which to seek leave to appeal against sentences passed on him on 8 September 2006.  The application for an extension, which was incorrectly filed as an application for leave to appeal under the District Court Act 1967 (Qld), s 118 thereof, was filed on 31 January 2007, and complained of mistakes assertedly made by the learned sentencing judge.  In the result this Court granted an extension of time within which to seek leave to appeal against the sentences, and adjourned the hearing of that application to a date to be fixed, so that the applicant could either prepare a proper argument, or obtain legal aid or legal representation.

[2] The reason for the adjournment was that on the hearing of the application for an extension of time, it became apparent that there was a problem with the manner in which the learned judge had declared the sentences being imposed.  That problem derives from the words of s 159A of the Penalties and Sentences Act 1992 (Qld) (“the Act”).  The Court undertook to publish reasons for allowing the adjournment, and identifying the problem, and now does so.

[3] Mr Harris-Davies had pleaded guilty on 8 September 2006 to the commission of 19 indictable offences, and to a variety of summary charges.  One of the indictable offences was of arson (count 12), and there were a substantial number of charges of having entered various premises with intent, and having stolen from them.  Mr Harris-Davies was sentenced that day to cumulative terms of imprisonment totalling in all five years and three months.  That total was made up of concurrent terms of two years, or less, on 18 of the indictable offences, a cumulative term of three years imprisonment imposed on the count of arson, and further cumulative terms totalling three months in all, for four separate offences against the Bail Act 1980 (Qld).  It is apparent from the number of offences committed that Mr Harris-Davies had been a persistent and recidivist offender. 

[4] The learned sentencing judge concluded the sentencing remarks by saying, regarding those sentences:

“That makes a total of five years and three months.  In all cases, except the two offences for which the prisoner is reprimanded, convictions will be recorded.  I declare pre-sentence custody from the 28th of August 2005 to the 8th of September 2006, namely 377 days, as time served in respect of the sentences just imposed.”

[5] The problem that emerged in argument is that s 159A of the Act reads as follows:

“(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.”

The point is that the subsection refers to a “term” of imprisonment and not to a “period” of imprisonment, and the expression “term of imprisonment” is defined in that Act to mean the duration of imprisonment imposed for a single offence.  It includes the imprisonment an offender is serving, or is liable to serve for default in payment of the single fine, or failing to comply with the single order of a court.  Because the learned judge declared pre-sentence custody of 377 days as time served in respect of the “sentences” (plural) just imposed, the argument was available to Mr Harris-Davies on his application that the learned sentencing judge had passed sentences which deducted the 377 days from all of the terms of imprisonment imposed, including the term of two years imposed for count 8, and, in addition, the term of three years imposed for count 12, and made cumulative on the two years in count 8.

[6] The sentencing remarks of the learned judge made it quite clear, as Mr Harris-Davies agreed, that the judge intended to declare that 377 days had already been served of a total period of imprisonment of five years and three months.  Mr Harris-Davies was prompted to seek leave to appeal by the contents of the warrant authorising his custody on that sentence, which stated that 377 days were to be deducted from each of the two year and the three year sentences, giving an effective declaration of 754 days in custody as already served.  Those warrants, in their terms, applied s 159A of the Act, but not the intent of the learned judge.

[7] The judge did not fix a parole eligibility date, and Mr Harris-Davies also complains about that, and asserts that because of what appeared in the warrant authorising his custody, he had been told – he says correctly – that his parole eligibility date was February 2007.  In accordance with that advice given to him, he applied for parole, and at that stage the difference between what appeared on the warrants, and what the learned judge plainly intended, was detected and purportedly corrected.  Mr Harris-Davies’ parole eligibility date is fixed, despite his argument to the contrary, by s 184 of the Corrective Services Act 2006 (Qld), namely the date when he has served one half of his sentence.  The learned judge had specifically declined to fix any other parole eligibility date, because the judge felt unable to make any informed decision on when Mr Harris-Davies might be suitable for parole.  The judge had correctly stated that Mr Harris-Davies would be eligible when he had served half his sentence, and that would be – on the sentences the judge intended to impose – on or about 8 April 2008.

[8] Mr Harris-Davies complained in his application for an extension of time that the learned judge was obliged to fix a date, but s 160C of the Act left it to the discretion of the sentencing judge whether to fix a parole eligibility date or not.  There was no error per se in the learned judge declining to fix the parole eligibility date.

[9] However, the warrants committing Mr Harris-Davies to custody, which reflect both the provisions of s 159A and the reference therein to a “term” of imprisonment, and also the judge’s sentences actually imposed by the order pronounced by the judge, obviously differ from the intent of that order.  Mr Harris-Davies was given the opportunity to withdraw his application for leave to appeal, should he so wish, and was advised that if the Court heard it on its merits, it might be that the end result was that his application was allowed, but that the sentence was re-stated to achieve the intent of the learned sentencing judge.  That would mean an ordered increase in the maximum term.  Mr Harris-Davies nevertheless wished to pursue his appeal, because he also complained that the learned judge had stated no reason as to why the three year sentence was made cumulative on the two years, and he wanted to argue that he should have received at worst a concurrent three year term.  He expressly elected to continue with his application.

[10]  I add that counsel for the respondent Director intimated the Crown might bring the matter back on before the learned sentencing judge, because of the problem caused by the manner in which the sentence was expressed.  Sentencing judges who are making a term of imprisonment cumulative on another term of imprisonment then being imposed should keep in mind the fact that s 159A allows declarations for “a term” of imprisonment rather than a “period”.  It is probably most likely to give effect to a sentencing judge’s intention if the judge ensures that declarations of time served relate only to the term or terms of imprisonment upon which another term or terms are being made cumulative, and not to the term or terms which are cumulative. 

[11]  This applicant has a point which may justify a grant of legal aid for the adjourned hearing of his application.  If he applies for legal aid, he should provide a copy of these reasons.

[12]  FRYBERG J: I concurred in granting the extension of time sought by the applicant in this case for the reasons expressed by Jerrard JA.  I was also concerned that, although the sentencing judge recognized that the applicant was entitled to credit for his pleas of guilty, it was not apparent from his Honour's reasons how that credit had been given.  Commonly it is given by setting a parole eligibility date, but his Honour did not feel he was in a position to do that.

[13]  If his Honour were to decide to reopen the proceeding under s 188 of the Penalties and Sentences Act 1992 (Qld) (as the Crown suggested it might ask him to do), he might choose to elaborate on that matter.

[14]  PHILIPPIDES J: I agree with the reasons expressed by Jerrard JA that an adjournment was warranted in relation to the application for an extension of time within which to seek leave to appeal against sentences imposed on 8 September 2006.