Harris-Davies v Central North Queensland Parole Board
[2008] QCA 245
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- Harris-Davies v Central North Queensland Parole Board[2008] QCA 245
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Harris-Davies v Central North Queensland Parole Board[2008] QCA 245
Harris-Davies v Central North Queensland Parole Board[2008] QCA 245
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | SC No 899 of 2007 |
Court of Appeal | |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | |
DELIVERED ON: | 22 August 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18 July 2008 |
JUDGES: | McMurdo P, Muir JA and Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Appeal dismissed with costs |
CATCHWORDS: | CRIMINAL LAW JURISDICTION – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – MISCELLANEOUS MATTERS – TIME SPENT IN CUSTODY – 31 sentences were imposed on the appellant in the District Court – the effective total of all of the sentences was five years and three months imprisonment – the sentencing judge declared 377 days pre-sentence custody as time served in respect of “the sentences” – the appellant’s application to the Supreme Court for judicial review was dismissed – whether the pre-sentence custody should be deducted from “each sentence of imprisonment imposed by the sentencing judge” Acts Interpretation Act 1954 (Qld), s 32C Corrective Services Act 2006 (Qld), s 180, s 184, s 496 Penalties and Sentences Act 1992 (Qld), s 4, s 159A, s 161, s 188 Criminal Practice Rules 1999 (Qld), r 62 R v Harris-Davies [2007] QCA 164, cited |
COUNSEL: | D R Kent for the applicant/appellant S J Hamlyn-Harris for the first respondent/first respondent |
SOLICITORS: | Legal Aid Queensland for the applicant/appellant Crown Law for the first respondent/first respondent |
[1] McMURDO P: The appeal should be dismissed with costs for the reasons given by Lyons J.
[2] MUIR JA: I gratefully adopt Lyons J's recitation of the facts and agree that the appeal should be dismissed with costs. As Lyons J's reasons note, the appeal is from the decision of a judge of the Supreme Court on an application for a statutory order of review of a decision of the first respondent, on 13 December 2006, not to process the applicant's application for parole and, in the alternative, the failure of the first respondent to make a decision on the application.
[3] The controversy between the first respondent and the appellant arises out of the view taken by the appellant, not shared by the respondents, that the effect of s 159A of the Penalties and Sentences Act 1992 (Qld) ("the Act") is that the 377 days pre‑sentence custody declared by the learned sentencing judge on 8 September 2006 to be time served in respect of sentences imposed by him was that the 377 days had to be deducted from "each sentence of imprisonment imposed by the sentencing judge."
[4] The sentencing judge divided the sentences into three groups. For 18 of the 19 counts on the indictment before him, sentences of imprisonment varying in duration from 12 months to three years were imposed. The sentence of three years imprisonment was imposed for Count 12, an offence of arson. The second group consisted of a number of summary offences in respect of which two terms of imprisonment of three months and four terms of one month were imposed. The sentences in the first group were ordered to be served concurrently but cumulatively upon the three year sentence. The sentences imposed for the summary offences were ordered to be served concurrently with each other and concurrently with the other sentences imposed. The third group of offences consisted of three breaches of the Bail Act 1980 (Qld). Sentences totalling three months imprisonment were imposed and it was ordered that those sentences be served cumulatively upon each other and cumulatively upon the other sentences.
[5] After imposing the sentences, the primary judge said[1]:
"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."
[6] Before imposing the sentences, the primary judge explained[2]:
"I propose to impose an effective sentence of five years and three months. I do not propose to make any order relating to eligibility for parole, because in this case in particular I am quite unable to make any informed decision as to when this prisoner might be suitable. It seems to me to be therefore appropriate that he become eligible for parole which I understand is after serving half the sentence."
[7] It is plain from the sentencing remarks that the sentencing judge declared the 377 days as time served in respect of the total cumulative term of five years and three months. The appellant's argument at first instance and on appeal depended not on the sentence actually imposed but on the construction of s 159A of the Act. But s 159A, however construed, cannot alter the sentences actually imposed. If the sentences were imposed in a way which did not conform with the requirements of s 159A, the appellant's remedy was by way of appeal. On 11 May 2007 the appellant was successful in obtaining an extension of time within which to seek leave to appeal against the subject sentences. It does not appear that he has done anything to prosecute the appeal. Perhaps that is because of an intimation by the Court on the extension of time hearing that if the Court heard the appeal "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."
[8] The primary judge disposed of the application before him:[3]
"… upon the basis that it has not been demonstrated … that in making the decision the first respondent was guilty of a failure to do one or other of the things which it is alleged it failed to do, or erred in one or other of the ways in which it is alleged it erred."
[9] The first respondent, properly, considered itself bound by the sentencing judge's sentence. The primary judge's conclusion, with respect, was correct. It was unnecessary for the primary judge to reach any concluded view on the correct construction of s 159A and he did not do so. Like the primary judge, I find it unnecessary to determine the construction point but I also regard the construction advanced on behalf of the appellant an unlikely one.
[10] Section 159A(1) cannot be construed in isolation from the other parts of the section, including sub-section (4). Sub-section (4) makes it plain that sub-section (1) may apply when a person has been held in custody and is being sentenced, for more than one offence. It also contemplates that when a person is being sentenced to imprisonment for more than one offence in circumstances in which sub-section (1) applies, "the time held in pre-sentence custody" is to be declared as a single period applying to all of the sentences of imprisonment being imposed as a whole.
Any doubt about whether "offence" in sub-section (1) could, in appropriate circumstances, be read as "offences"[4] would seem to be removed by sub-section (4).
[11] There is the additional consideration that the consequences of the appellant's construction are such that it is unlikely that they were in the Legislature's contemplation.
[12] LYONS J: The essential question in this appeal relates to the effect of the declaration of pre-sentence custody pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) on cumulative sentences imposed on the appellant. A total of 31 sentences were imposed on the appellant in the District Court at Cairns on 8 September 2006. Most sentences were concurrent but some were cumulative. The effective sentence was five years and three months imprisonment. The appellant contends that because the learned sentencing judge declared the 377 days pre-sentence custody as time served in respect of “…the sentences”, the pre‑sentence custody should be counted as time served for the initial concurrent sentences and for each cumulative sentence. The appellant wants the 377 days deducted from each. The respondents, however, contend that the pre-sentence custody should be credited against the appellant’s total period of imprisonment of five years and three months only once.
[13] The current appeal is an appeal from the Supreme Court in Townsville which dismissed the appellant’s application under the Judicial Review Act 1991 (Qld) for a review of the decision by the second respondent not to process his parole application or alternatively, a review of the failure by the first respondent to make a decision on his parole application.
Background
[14] On 8 September 2006, the appellant pleaded guilty to 19 indictable offences and 12 summary offences. The indictable offences involved an offence of arson, two counts of fraud involving passing valueless cheques in June 2000, and numerous property offences essentially involving stealing and breaking into properties. The value of the “…property taken” was $68,041 and the value of the “…property lost” was $60,041. The sentencing judge indicated that the purpose of the offending was to obtain money or property for the benefit of the appellant or his friends. The appellant had a lengthy criminal history.
The sentence imposed
[15] The sentencing judge in imposing his sentence stated: “…I propose to impose an effective sentence of five years and three months.” His Honour then sentenced the appellant to various terms of imprisonment with some declared to be cumulative upon others as follows:[5]
“Count 1, 12 months; count 2, 12 months; count 3, 12 months; count 4, 12 months; count 5, 12 months; count 6, 12 months; count 7, 12 months; count 8, two years; count 9, 12 months; count 10, three months; count 11, 12 months; count 13, 12 months; count 14, six months; count 15, 12 months; count 16, 12 months; count 17, 12 months; count 8, three months; count 19, three months.
All of those sentences are to be served concurrently. For the offence of arson of a motor vehicle, count 12, the sentence will be three years’ imprisonment, and it will be served cumulatively upon the other sentences imposed in respect of the indictment. That adds up to five years.
For the summary offences the sentences will be these. I will try to identify these by relating them to the short title of the offence and the date of the offence on the Bench charge sheets:
Unlicensed/never licensed, 26th of May 2005, three months; failing to stop at a stop sign on the 26th of May 2005, reprimanded; possession of a dangerous drug, 25th of May 2005, one month; unlicensed driving, 28th of May 2005, one month; unlicensed driving; 21st of May 2005, one month; unlicensed/never licensed, 9th of June 2005, one month; driving with an excess blood alcohol concentration, 10th of June 2005, three months; contravening a direction or requirement, 6th of July 2005, reprimanded.
All of those sentences will be served concurrently with each other, and concurrently with the other sentences imposed.
That leaves the four bail offences. There are three offences of breaching a bail undertaking on the 28th of June 2005. For the first of those the sentence will be one month imprisonment; for the second of those the sentence will be 14 days’ imprisonment; for the third of those the sentence will be 14 days’ imprisonment; for the offence of breach of bail condition, 7th of August 2005, the sentence will be one month imprisonment. On my calculations that totals three months. All of those sentences are to be served cumulatively upon each other, and cumulatively upon the other sentences imposed, as required by the Bail Act.
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.
I order that the defendant be disqualified from holding or obtaining a driver’s licence for five years.” (emphasis added)
[16] Accordingly, the appellant was sentenced 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 for 18 of the indictable offences and a cumulative term of three years for the arson. The Court Order Sheet attached to the indictment containing those charges was endorsed by the Associate to indicate that pre‑sentence custody of 377 days between 28 August 2005 and 8 September 2006 “…be deemed time already served under the sentence.” In relation to the 12 summary offences the appellant was reprimanded for two offences and sentenced to various terms of imprisonment ranging from one month to three months imprisonment for six of the offences. Those sentences were ordered to be served concurrently with each other and with the other sentences imposed. Further cumulative terms totalling three months in all for the four offences against the Bail Act 1980 (Qld) were also imposed. The Court Order Sheet attached to the Summary Charge Sheet also declared that 377 days “…be deemed time already served under the sentence.” Because a parole eligibility date was not fixed, the appellant’s parole eligibility falls to be determined pursuant to s 184(2) of the Corrective Services Act 2006 (Qld) and is, therefore, the day after the day he had served half of his “…period of imprisonment.”
[17] The Verdict and Judgment Records[6] prepared under the Criminal Practice Rules 1999 (Qld) r 62 recorded, however, the declaration under s 161[7] of the Penalties and Sentences Act 1992 for each and every offence. Rule 62 requires that the proper officer of the Court must make a record containing the record of the sentence imposed and that a copy must be given to the Chief Executive of Corrective Services.
The issue
[18] The extract from the judge’s sentencing remarks set out earlier make it clear that his Honour’s intention was to have the 377 days deducted once from the total period of imprisonment imposed of five years and three months. However, the warrants constituted by the Verdict and Judgment Records committing the appellant to custody[8] indicated that the 377 days of pre-sentence custody was to be deducted from all the periods of imprisonment, including the three year sentence, the cumulative two year sentence, and the cumulative three month sentence for the summary bail offences.
[19] On 12 September 2006, Sentence Calculation Details were prepared by Corrective Services using the Integrated Offender Management System which recorded his “Fulltime Discharge Date” as 15 August 2009 and his “Parole Eligibility Date” as 13 February 2007. That calculation document, however, recorded the following notation, “…377 days declared on both terms…letter sent to court 13.09.06 to clarify the court’s intention.”[9] The appellant accordingly applied for parole on 16 October 2006, which was 120 days prior to his eligibility date, in accordance with s 180(2) of the Corrective Services Act 2006 (Qld).
[20] Corrective Services advised the appellant by letter dated 13 December 2006[10] that his parole application had not been processed due to changes to his eligibility dates. He was advised that:[11]
“…[f]ollowing receipt of your court transcript on 11th December 2006 it has been confirmed that your sentence was calculated incorrectly.
Initial warrants received from the court indicated that 377 days pre‑sentence custody was to be deducted from both your 3 year and your 2 year sentences. However, the court transcript has confirmed that when sentencing it was the Judge’s intention to only have the 377 days deducted once from the total period of imprisonment.”
[21] The letter further advised that his sentence had been recalculated and his “Parole Eligibility Date” was 10 April 2008 and his fulltime discharge date was 25 November 2010. The appellant’s parole application was returned to him with an indication that it “...may be re-submitted in December 2007.”[12]
The application for an extension of time for leave to appeal against the sentences
[22] On 11 May 2007, this Court heard an application by the appellant for leave to appeal against the sentences imposed on 8 September 2006 and on that date this Court granted an extension of time and adjourned the hearing of that application to a date to be fixed. The reason for the adjournment was so that the appellant could either prepare a proper argument or obtain legal advice. That application however, was later abandoned.
[23] In the reasons delivered on 25 May 2007,[13] Jerrard JA stated the essence of the appellant’s argument on the issue as follows:[14]
“[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.”
[24] An application was subsequently made on 14 May 2007 to reopen the sentence pursuant to s 188 of the Penalties and Sentences Act 1992 (Qld), however, the learned sentencing judge declined to do so. An amended Verdict and Judgment Record issued on 1 October 2007 indicated pre-sentence custody of 377 days in relation to “the sentence”.[15]
The application for judicial review
[25] On 14 December 2007, the appellant applied to the Supreme Court at Townsville under the Judicial Review Act 1991 (Qld) for review of the decision of the first respondent on 13 December 2006 not to process his parole application. The grounds stated were a failure by the first respondent to follow the procedures required by law, that the decision was not authorised by the enactments, and that the decision involved an error of law. In the alternative, the appellant applied for a review of the failure by the first respondent to make a decision on his parole application made on or about 16 October 2006. The ground stated that there was a failure in the respondent’s duty to make a decision on the appellant’s application for parole. The appellant sought declarations that his full-time discharge date was 15 August 2009 and that he was entitled to make the application for parole. He also sought an order that the first respondent consider his application for parole.
The decision
[26] On 20 March 2008, the application for judicial review was dismissed in the Townsville Supreme Court with the learned trial judge indicating:[16]
“It was contended, on behalf of the respondent, that any difficulty would be avoided by the application of section 32C of the Acts Interpretation Act 1954 which provides that, unless the context otherwise required, the singular includes the plural in any act and the plural includes the singular.
So that applying the former of these two to section 159A one would have a provision in these terms: If an offender is sentenced to terms of imprisonment for offences any time that the offender was held in custody in relation to proceedings for the offences and for no other reason must be taken to be imprisonment already served under the sentences unless the sentencing Court otherwise orders.
The applicant appealed to the Court of Appeal and the matter was argued. It did not proceed to judgment as the hearing of the appeal was adjourned. However, Mr Justice Gerrard, [sic] in the course of dealing with the matter, made some remarks which might be thought to have given some comfort to the applicant in relation to this argument, although ultimately what I think his Honour was doing was postulating the argument which might justifiably support a grant of legal aid upon the adjourned hearing of the application. Certainly I do not regard anything said by his Honour as expressing a concluded opinion about the matter binding upon me.
Section 159A plainly reflects an obvious policy and that is that a person who has already served a period of imprisonment in respect of an offence should have credited to him or her, unless the Court otherwise orders, that period of imprisonment as part of the imprisonment imposed for that offence if that is the sentence imposed.
In its application to multiple offences, and in particular multiple offences resulting in cumulative terms of imprisonment, its operation is not so clear. However, it is for the applicant to satisfy me that the order sought should be granted upon the basis that the decision‑maker, the first respondent, failed in one or other of the ways alleged in the application for statutory to review or erred in one or other of the respects alleged in that application in refusing to entertain the application made by the applicant for parole.
I am not persuaded that that is the case. I think that on any construction of section 159A a result which would have the effect that there was credited to a prisoner more than the term of a period already served, and indeed perhaps not only more but multiples of the period already served, should not be regarded as the correct interpretation of the section.
I am inclined to accept the argument that the section should be read distributively by the application of section 32C of the Acts Interpretation Act in the way contended by counsel for the respondent. In this way the conclusion contended for by the applicant, which in my view would bring about a result contrary to the evident policy of the section, is avoided.
I am, however, content to dispose of the matter upon the basis that it has not been demonstrated to me that in making the decision the first respondent was guilty of a failure to do one or other of the things which it is alleged it failed to do, or erred in one or other of the ways in which it is alleged it erred.”
This appeal
[27] The appellant now appeals from that decision on the basis that the learned trial judge erred in law as follows:[17]
“(i)applying s. 32C of the Acts Interpretation Act 1951 in interpreting s. 159A(1) of the Penalties and Sentences Act 1991;
(ii)failing to properly interpret s. 159A of the Penalties and Sentences Act 1991;
(iii)failing to properly apply s. 159A of the Penalties and Sentences Act 1991 to the sentence imposed by His Honour Judge White DCJ and thereby failing to recognize that the sentences imposed by His Honour White DCJ on the Appellant on 8th September 2006 required the pre-sentence custody of 377 days be deducted from each sentence of imprisonment imposed by Judge White;
(iv)failing to properly interpret the sentence imposed by His Honour Judge White DCJ on 8th September 2006;
(v)failing to declare that the Appellant’s Fulltime Discharge Date was 15th August 2009;
(vi)failing to make the Orders sought by the Appellant in the Statutory Order of Review filed 30th January 2008.”
[28] The Notice of Appeal sought orders including that the orders sought in the appellant’s application for Statutory Order of Review be substituted for the orders made by the primary judge. The amended application for a statutory order of review includes a reference to a review of the decision not to process the appellant’s application for parole and one of the claimed orders was a declaration that the appellant’s full-time discharge date is 15 August 2009. Because the argument about the parole date has now become redundant, given that the latest possible parole eligibility date has passed, and the appellant has been released on parole, the appellant was given leave to further amend his application to include a review of the decision made by the first respondent on 13 December 2006, that the appellant’s full-time discharge date was 25 November 2010.
The appellant’s submission
[29] The main basis of the appellant’s argument before this Court is that the learned trial judge erred by failing to properly apply s 159A to the sentence imposed by the sentencing judge, and that a deduction of 377 days from each of the cumulative sentences of two years and three years is required. The appellant argues that in accordance with s 159A, the appellant was sentenced to terms of imprisonment for the offences, the appellant was held in custody in relation to proceedings for those offences, and for no other reason, and that the time must therefore be taken to be imprisonment already served under both the sentences unless the sentencing court orders otherwise. The sentencing judge did not order otherwise.
[30] The appellant relies on the definition of “sentence” in s 4 of the Penalties and Sentences Act 1992 (Qld) that, “…[s]entence means any penalty or imprisonment ordered to be paid or served, or any other order made, by a court after an offender is convicted, whether or not a conviction is recorded” and submits that the “sentences” in this case must refer to the imprisonment ordered to be served, after conviction, for the offences to which the pre-sentence custody relates. Therefore the appellant argues that if there is pre-sentence custody for an offence, and imprisonment is ordered to be served for that offence, it must be taken to be served under that imprisonment unless otherwise ordered. The appellant’s counsel submits that any ambiguity in legislation affecting the liberty of the person will usually be construed in favour of the person affected and that the right to personal liberty cannot be taken away without lawful authority and only to the extent and for the time which the law prescribes.
The 20 March 2008 decision on the application for judicial review
[31] In the end it is unnecessary to deal with the appellant’s contentions because, for the reasons which follow, his Honour’s conclusion was plainly right. The judge’s sentencing remarks make clear that he intended to impose an effective sentence on the appellant for all the offences before the court of five years and three months and that the time served in pre-sentence custody of 377 days be declared in respect of that total sentence. The material before the primary judge on 20 March 2008 included the current Verdict and Judgment Record dated 1 October 2007 which indicated that “…the offender was held in pre-sentence custody for 377 days between 28/08/2005-08/09/2006.” The court declared that the whole of this time be imprisonment already served under the sentence. This was consistent with the sentencing judge’s clear intention manifested in his sentencing remarks. It was also consistent with the approach of the first respondent on 13 December 2006. The primary judge was right to refuse the appellant’s application and the appeal should be dismissed with costs.
Footnotes
[1] Reasons, p 35
[2] Reasons, p 33
[3] Reasons, p 23
[4] See s 32C of the Acts Interpretation Act 1954 (Qld)
[5] Appeal Record Book, pp 34-35.
[6] Appeal Record Book, p 128.
[7] Whilst the endorsement indicated the declaration was made under s 161 that section had been repealed on 28 August 2006. The declaration is made pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) (s 496 of the Corrective Services Act 2006 (Qld) amended s 161 to become s 159A and this Act commenced on 28 August 2006).
[8] Criminal Practice Rules 1999 (Qld) rr 62(3) and (4).
[9] Appeal Record Book, p 46.
[10] Appeal Record Book, p 48.
[11] Appeal Record Book, p 48.
[12] Appeal Record Book, p 48.
[13] R v Harris-Davies [2007] QCA 164, [5]-[6].
[14] Appeal Record Book, p 106-107 at [5]-[6].
[15] Appeal Record Book, p 84. A letter from the Cairns registrar dated 10 October 2007 states that this letter was issued in error but it is common ground that this letter is not correct and the 1 October 2007 Verdict and Judgment Record is the current Verdict and Judgment Record.
[16] Transcript of Proceedings (Supreme Court No 899 of 2007), pp 3-5.
[17] Appeal Record Book, p 131.