R v Glebow[2007] QCA 230

SUPREME COURT OF QUEENSLAND

1. de JERSEY CJ:  This judgment addresses an important public issue:  whether the legislature has effectively ensured that courts can penalize life prisoners who re-offend while in custody.  It is abhorrent to think a murderer should not, by the sentences of the court, be deterred from committing further violent crimes while in custody.

2. The present issue is whether the legislature has effectively armed the courts with any capacity to secure such general deterrence. The basic point rests in the concept of mandatory life imprisonment. Against that background, a subsequent sentencing court cannot increase the sentence. But where the prisoner further offends, can the existing sentence effectively be ‘strengthened’? The plain legislative view is that it can. The present issue is whether that has been achieved.

3. On 5 March 2002, the applicant was convicted of murder and sentenced to life imprisonment. On 15 March 2007, he pleaded guilty to the offence of unlawful assault occasioning bodily harm while in company. While in company with at least two other men, the applicant assaulted another inmate in the exercise yard at Arthur Gorrie Correctional Centre. The applicant has a history of violent offending. Fortunately, the victim was not seriously injured.

4. On 29 March 2007 the learned primary Judge sentenced the applicant to nine months imprisonment, to be served concurrently of course with the life sentence (cf R v Mickelo [1993] 1 Qd R 230).  Because of s 181(3) of the Corrective Services Act 2006 (Qld), the applicant’s parole eligibility date under the life term was 4 April 2015.  The Judge fixed a new parole eligibility date six months later, that is, 4 October 2015.

5. The applicant contends that the Judge erred in fixing a new parole eligibility date “in circumstances where the applicant was presently serving a life sentence for murder”. The respondent submits that although His Honour erred in considering himself obliged to fix a new date, he had a discretion to do so, and that this Court should now exercise that discretion, adopting the date set.

6. There is no challenge to the term of nine months imprisonment imposed, or to the reasonableness of extending the parole eligibility date by six months: the only issue arising on the application is whether the Judge had either an obligation, or a discretion, to fix a new date. If there was a basis for extending the date, then in my view a six month extension was appropriate.

7. The applicant’s contention is based on s 305(1) of the Criminal Code, which provides (emphasis added):

“(1)Any person who commits the crime of murder is liable to imprisonment for life, which can not be mitigated or varied under this Code or any other law or is liable to an indefinite sentence under Part 10 of the Penalties and Sentences Act 1992.” 

8. In R v Corrigan [1994] 2 Qd R 415, this Court held that a recommendation in relation to early release on parole formed part of a “sentence”, as defined in s 4 of the Penalties and Sentences Act 1992 (Qld), and because of its ameliorating effect, qualified as a “reduction” in sentence within the meaning of s 13(1)(b).  See also R v Bafico [1996] 2 Qd R 274.  The applicant contends that by varying the date fixed by the operation of s 181(3) of the Corrective Services Act, His Honour impermissibly varied the life sentence, contrary to s 305(1) of the Code. 

9. The applicable legislative scheme has changed significantly since those two cases were determined, with the introduction of Part 9 Division 3 into the Penalties and Sentences Act, the addition of sub-s (2) to s 305 of the Criminal Code, and the enactment of s 181 of the Corrective Services Act.  Neither of those cases is determinative of the outcome of this one.

10. It may also be observed – vis-à-vis Corrigan – that the legislature clearly has not since thought that the application of s 181(3), in setting a parole eligibility date for a life term, works a variation of, or mitigates, that term; likewise with s 305(2) of the Code, contemplating the prospect of the release of a multi-murderer after serving “a minimum of 20 or more specified years”.  Significantly, the enactment of s 305(2) in 1997 post-dated Corrigan and Bafico, as did the enactment of s 181 of the Corrective Services Act.

11. The Judge took the view that he was obliged, by s 160C(2) of the Penalties and Sentences Act, to fix a new parole eligibility date.  Section 160A provides that the following sections, 160B-D, apply “if a court is imposing a term of imprisonment on an offender for an offence”.  They constitute “the only law under which a court may, on sentence of an offender for an offence, make an order relating to a person’s release on parole” (sub-s (2)). 

12. One looks first to s 160D, because it is only if it does not apply, that one goes to the preceding provisions. Section 160D is in these terms:

“160DSentence for a serious violent offence or sexual offence

(1)This section applies if the offender’s period of imprisonment includes a term of imprisonment for a serious violent offence or a sexual offence.

(2)If the offender had a current parole eligibility date or current parole release date, the court must fix the date the offender is eligible for parole.

(3)If subsection (2) does not apply, the court may fix the date the offender is eligible for parole.

(4)A date fixed under subsection (2) must not be earlier than the current parole eligibility date or current parole release date.”

13. The term “period of imprisonment” (s 160D(1)) is defined by s 160, as “the period of imprisonment that includes the term of imprisonment mentioned in s 160A”. The “term of imprisonment mentioned in s 160A” is, in this case, the nine month term imposed for the assault occasioning bodily harm. The applicable “period of imprisonment” was the applicant’s life term, embracing that nine months term imposed by His Honour.

14. The nine months was imposed in respect of the offence of assault occasioning bodily harm. The issue under s 160D(1) is whether that was “a term of imprisonment for a serious violent offence”. That is not concluded in the affirmative simply because the offence of assault occasioning bodily harm is included in the Schedule to the Penalties and Sentences Act.  It must be answered by reference to s 161A:

“When an offender is convicted of a serious violent offence

161AAn offender is convicted of a serious violent offence if –

(a)the offender is –

(i)convicted on indictment of an offence –

(A)against a provision mentioned in the schedule; or

(B)of counselling or procuring the commission of, or attempting or conspiring to commit, an offence against a provision mentioned in the schedule; and

(ii)sentenced to 10 or more years imprisonment for the offence, calculated under section 161C; or

(b)the offender is convicted on indictment and declared to be convicted of a serious violent offence under section 161B(3) or (4).”

Because neither paras (a)(ii) nor (b) applied, the applicant was not, for the assault occasioning bodily harm, convicted of a serious violent offence.

15. Consequently, s 160D did not apply. One turns then to s 160C.

16. Section 160C is in these terms:

“160CSentence of more than 3 years and not a serious violent offence or sexual offence

(1)This section applies if section 160D does not apply and the offender’s period of imprisonment is more than 3 years.

(2)If the offender had a current parole eligibility date, the court must fix the date the offender is eligible for parole.

(3)If the offender had a current parole release date, the court may fix the date the offender is eligible for parole.

(4)A date fixed under subsection (2) or (3) must not be earlier than the current parole eligibility date or current parole release date mentioned in the subsection for the offender.

(5)If neither subsection (2) nor (3) applies, the court may fix the date the offender is eligible for parole.”

17. Section 160C applied if “the offender’s period of imprisonment is more than three years” (sub-s (1)). As noted in relation to s 160D: the term “period of imprisonment” is defined by section 160, as “the period of imprisonment that includes the term of imprisonment mentioned in section 160A”; the “term of imprisonment mentioned in s 160A” is, in this case, the nine month term imposed for the assault occasioning bodily harm; and the applicable “period of imprisonment” was the applicant’s life term, embracing that nine months term imposed by His Honour.  Because the applicant’s period of imprisonment, being life, exceeded three years, s 160C applied.

18. Relying on sub-s (2), the Judge took the view that the applicant was subject to a “current parole eligibility date”, being 4 April 2015, by operation of s 181(3) of the Corrective Services Act.  That date was his statutorily set parole eligibility date, but it was not a “parole eligibility date” as that term is particularly defined in the Penalties and Sentences Act.

19. The term “current parole eligibility date” is defined by s 160 of the Penalties and Sentences Act as follows:

“160Definitions for div 3

In this division –

current parole eligibility date, in relation to the imposition of a term of imprisonment mentioned in section 160A on an offender, means a parole eligibility date –

(a)previously fixed for the offender in relation to another term of imprisonment; and

(b)cancelled under section 160E on the imposition of the term of imprisonment.”

20. That definition takes one back to the definition of “parole eligibility date”. The term “parole eligibility date” is defined in s 160 to mean “the date fixed under section 160B(2), 160C(2), (3) or (5), 160D(2) or (3) or 213 as the date the offender is eligible for parole”. Those sections concern dates fixed by the court. The applicant’s parole eligibility date, when he came to be sentenced on 29 March 2007, was not a “parole eligibility date” within the meaning of s 160 of the Penalties and Sentences Act.  It was not a date fixed under any of the sections referred to in the definition of “parole eligibility date” in s 160.  It was a date statutorily set by operation of s 181 of the Corrective Services Act.

21. Section 160C(2) therefore did not apply. Consequently, the sentencing court was under no obligation to fix a new date for eligibility for parole. But because sub-s (2) (and sub-s (3)) did not apply, sub-s (5) gave rise to a discretion in the court to fix a new date.

22. The respondent submits that this Court should now exercise that discretion, adopting the date actually set by His Honour (although erroneously in that he purported thereby to discharge a duty which did not exist).

23. Mr Moynihan SC, for the applicant, points to s 160A(4). Sub-section (1) of section 160A establishes the applicability of ss 160B-D, and sub-s (2) describes that as “the only law under which a court may, on sentence of an offender for an offence, make an order relating to a person’s release on parole”. But sub-s (4) then provides:

“(4)This section applies subject to any express provision to the contrary, in an Act, about a particular sentence.”

Mr Moynihan then reverts to s 305(1) of the Criminal Code, providing that the life term for murder “can not be mitigated or varied under this Code or any other law”.  He submits that in relation to murder, s 305(1) is, in terms of s 160A(4), an “express provision to the contrary”, so that the s 160C(5) discretion did not apply.

24. In response, Mr Copley, who appeared for the respondent, relies on s 160A(5) of the Penalties and Sentences Act and s 181(4) of the Corrective Services Act.

25. The former provision is in these terms:

“(5)Also –

(a)a court can not fix a date under sections 160B to 160D that reduces the minimum period of imprisonment an offender must serve under the Corrective Services Act 2006, section 181(2) or (3), 182(2)(a) or (b) or 183(2) (a relevant provision); and

(b)no date fixed by the court under sections 160B to 160D can reduce the minimum period of imprisonment an offender must serve under a relevant provision.”

26. Section 181(2) and (3) of the Corrective Services Act are the provisions which specify when eligibility for parole arises in the case of a life term or life terms imposed for a murder or murders.  Section 160A(5) thereby suggests a court may under ss 160B-D fix a parole eligibility date where a prisoner is serving a life term for murder, provided the court does not reduce the minimum period to be served by virtue of s 181 Corrective Services Act.

27. Mr Copley then submits, and reasonably, that if s 305(1) of the Criminal Code is, for s 160A(4) of the Penalties and Sentences Act, to be regarded as an “express provision to the contrary”, of its own force proscribing any interference with a life term as by the fixing of a (later) parole eligibility date, there would be no need for the legislature to make the provision it has in s 160A(5).  There is no warrant for excluding convicted murderers from the application of s 160A(5).  If the legislature had contemplated that limitation, it would have expressed it.

28. As noted earlier, the legislature has obviously not thought setting a parole eligibility date “varies” a sentence of life imprisonment. That emerges from the enactment of s 181 of the Corrective Services Act and s 305(2) of the Code.  Section 305 of the Code provides that the penalty for murder cannot be varied “under this Code” or any other law.

29. I turn to s 181 of the Corrective Services Act, the further provision on which Mr Copley particularly relies.  It provides:

“181Parole eligibility date for prisoner serving term of imprisonment for life

(1)This section applies to a prisoner who is serving a term of imprisonment for life.

(2)If the Criminal Code, section 305(2) applies, the prisoner’s parole eligibility date is the day after the day on which the prisoner has served 20 years or the longer time ordered under that section.

Note –

The Criminal Code, section 305 deals with punishment for the crime of murder.

(3)If the Criminal Code, section 305(2) does not apply, the prisoner’s parole eligibility date is the day after the day on which the prisoner has served 15 years.

(4)Despite subsections (2) and (3), if a later parole eligibility date is fixed for the period of imprisonment under the Penalties and Sentences Act 1992, part 9, division 3, the prisoner’s parole eligibility date is the later date fixed under that division.”

30. Mr Copley relies particularly on sub-s (4), as confirmation that the Court might in this case, in the exercise of a discretion under s 160C(5) of the Penalties and Sentences Act, have set a parole eligibility date “later” than 4 April 2015.  The provision, he submits, addresses the problem raised in this court in R v Griffiths CA 339/1998, unreported, 3 February 1999.  (See also R v Collins [1998] 1 Qd R 192)

31. In Griffiths, a prisoner serving a life term was convicted of contempt of court, and the sentencing Judge sought to give ‘teeth’ to the penalty for contempt by a recommendation as to eligibility for parole which the Court of Appeal held to be beyond power.  Davies JA, with the agreement of the other members of the court, said this:

“Members of this Court have on previous occasions drawn the attention of the legislature to this problem.  An effective sentence cannot be imposed in a case such as this.  See R v Collins CA No 563 of 1996; 18 March 1997, unreported.  It is to be hoped in the meantime the commission of this offence will be taken into account by the appropriate authorities when the time comes to consider any application by the applicant for parole.” (p 4)

32. Section 181(4) of the Corrective Services Act 2006, which “applies to a prisoner who is serving a term of imprisonment for life” (sub-s (1)), and which expressly deals with the fixing of a “later parole eligibility date” under s 160A and following sections of the Penalties and Sentences Act, must reasonably be seen as the legislature’s response to the problem highlighted by Griffiths.

33. By this amending legislation, the Parliament has given courts power to make orders to ensure that life prisoners who subsequently offend are in real terms penalized for their further offending. The great utility of that, in relation to the maintenance of good order in prisons, especially, is obvious.

34. In my view, the court had a discretion to fix a new date for eligibility for parole, under s 160C(5). That a date later than the date which would otherwise apply here might be set, is expressly confirmed by sub-s 181(4) of the Penalties and Sentences Act.  The only limitation on the exercise of the discretion was that because of s 160A(5), an earlier date could not be set.

35. The enactment of s 181(4) carries with it the legislature’s implicit view that s 305(1) of the Criminal Code is not “an express provision to the contrary” in terms of s 160A of the Penalties and Sentences Act.  In other words, by s 181(4) of the Corrective Services Act and s 160A(5) of the Penalties and Sentences Act, the legislature has effectively deemed that the fixing of a later parole eligibility date, as occurred here, where a life prisoner is sentenced for a subsequent offence, does not amount to a “variation” of the sentence of life imprisonment imposed for the murder.  The legislature has thereby confronted and dispelled a contention otherwise arguable on the basis of this court’s decision in Corrigan, dealt with in para [8] above.

36. Mr Copley drew attention to the sequence of the provisions leading to s 160A(4). The immediately preceding sub-section is a general prohibition against a court’s making parole release recommendations. Then sub-s (4) creates an exception: the court may do so if authorized by an “express provision…in an Act, about a particular sentence”. It is hard to regard s 181(4) of the Corrective Services Act as not falling into that category.

37. The preceding textual analysis sits comfortably with the relevant legislative history. That history suggests the legislature’s concern was to ensure that those convicted of murder were sentenced to no less than life imprisonment. Far from being concerned that a grant of parole for those convicted of murder would ameliorate the sentence, the legislature actively created mechanisms to allow for grants of parole in those circumstances.

38. When the Criminal Code was enacted in 1899, s 305 then provided:

“Any person who commits the crime of wilful murder or murder is liable to the punishment of death.”

Section 3 of the Criminal Code Amendment Act 1922 repealed the words, “the punishment of death”, substituting the words “imprisonment with hard labour for life, which cannot be mitigated or varied under section nineteen of this Code”.  Section 19 had relevantly provided:

“In the construction of this Code it is to be taken that, except when it is otherwise expressly provided, –

1. A person liable to imprisonment, either with or without hard labour, for life or for any other period may be sentenced to similar imprisonment for any shorter term;…”

39. Sections 305 and 19 remained substantially in those terms until the enactment of the Penalties and Sentences Act 1992.  Section 19 was then repealed, and s 305 amended by omitting the words, “section nineteen of this Code”, and casting the section into its current form. 

40. Section 153(1) of the Penalties and Sentences Act went on to deal with one aspect of the many matters formerly dealt with by s 19 of the Code.  Section 153(1) remains in its original form:

“An offender liable to imprisonment for life, or for any other period, may be sentenced to imprisonment for any lesser period.”

41. Accordingly, as Mr Copley submitted, from at least 1922 the legislature had been concerned to provide a mandatory penalty of life imprisonment for murder, and that anyone liable to (non-mandatory) imprisonment for life might be imprisoned for a shorter period, but to ensure that that did not apply in the case of those sentenced for murder.

42. However for reasons already expressed (esp, para [35]), the legislative history regarding possible release on parole indicates the legislature did not regard the amelioration of a murderer’s life sentence by way of eligibility for parole, as involving “mitigation”, or “variation”, of the sentence of imprisonment for life.

43. The conclusion is compelling that s 305(1) of the Code is intended to ensure that those guilty of murder are sentenced to no less than life imprisonment, and not with whether that term of imprisonment may subsequently be ameliorated by decisions in relation to parole.

44. It is fundamentally important to note that decisions about parole do not affect the length of a term of life imprisonment. That is statutorily confirmed. Section 214 of the Corrective Services Act 2006 provides:

“A prisoner released on parole is taken to be still serving the sentence imposed on the prisoner.” 

See also s 200.

45. I would grant leave to appeal and allow the appeal, and order that the applicant be imprisoned for nine months, to be served concurrently with the term of life imprisonment imposed on 5 March 2002, and that under s 160C(5) of the Penalties and Sentences Act 1992, the applicant’s parole eligibility date be fixed as 4 October 2015.

46. JERRARD JA:  I have read and respectfully agree with the reasons and orders proposed by the Chief Justice. 

47. MULLINS J:  I agree with the Chief Justice.