SUPREME COURT OF QUEENSLAND

[1] FRASER JA: In accordance with the Court’s usual practice, counsel presented full argument on the footing that if leave were granted the Court would dispose of the appeal in this matter subject only to the applicant being afforded an opportunity to withdraw the appeal if the Court contemplated imposing a more severe sentence.  Leave to appeal should be refused because, for the reasons given by Jones J, the proposed appeal would not succeed.  I would also note the theoretical possibility of a future application in the sentencing court to correct the error concerning the commencement of the sentence under s 188 of the Penalties and Sentences Act 1992 (Qld).  I understood from the submissions that no such application would be made.  On that basis I agree that the application for leave to appeal should be refused.

[2]  WHITE JA: I agree with JonesJ that should the applicant’s submissions on sentence remain as argued on his leave application, there is no basis for concluding that his prospects of success on appeal, were leave to be granted, are at all promising.  In the circumstances, comprehensively outlined by his Honour, I agree that leave to appeal should be refused.

[3]  JONES J: On 7 August 2009, the applicant was sentenced in the District Court on pleas of guilty to terms of imprisonment for the following offences:-

23 October 2005 – Entering a dwelling and stealing 12 months imprisonment

8 November 2008 – Stealing 6 months imprisonment

12 November 2008 – Robbery with violence 5 years imprisonment

Each of the terms of imprisonment were to be served concurrently.

[4] The applicant seeks leave pursuant to s 668D of the Criminal Code to appeal against these sentences on the grounds:-

(i) That the learned sentencing judge erred in failing to give proper consideration to the effect of s 156A of Penalties and Sentences Act 1992 (Qld) in the circumstances; and

(ii) That the learned sentencing judge made an error of fact in calculating the applicant’s parole eligibility date.

[5] When the applicant committed the offences in November 2008 he was on parole for earlier offences for which he had been sentenced on 26 October 2006.  The major sentence then, was for a term of four years imprisonment.  His full time release for those offences, after allowing for time served, was 22 January 2009 with parole eligibility on 30 April 2007.  For reasons which are not made clear, he was not released on parole until 3 October 2008.  When he was released it appears to have been done in some haste and without the applicant having time to make suitable arrangements for his accommodation and care and this may have contributed to his re-offending.

[6] The applicant committed the subject offences in a most obvious way without an apparent attempt to avoid detection.  On 8 November 2008 – some 25 days after his release on parole – the applicant visited the complainant in the hotel room where the complainant was staying.  The applicant observed a video camera in the room and made a comment to the complainant about it.  A short time later, the complainant went to the bathroom and when he came out he saw that the applicant had left and the camera was missing.  On 12 November 2008, the applicant visited a bottle shop on Latrobe Terrace Paddington and started to look around.  He engaged the shop attendant in conversation after which he selected a six pack of beer.  As he went to the counter he produced a small knife and threatened the attendant and demanded the money in the till.  Some $3,000.00 was taken.  The applicant made no attempt to conceal his identity, and was later easily identified on security camera records.  Whilst making the demands the applicant apologised to the attendant saying “Sorry mate.  Sorry mate”.  He gave himself up to police on 18 November 2008.  He later advised that he was hoping to be returned to gaol.

[7] During the period of his earlier incarceration, a series of fines which had earlier been imposed on the applicant, but which remained unpaid, were executed by exacting the default periods of imprisonment.  The several periods of imprisonment totalled seven months 23 days.  Consequently, at the time parole was granted, his full time release date had been extended by that time.

[8] After committing the offence of stealing on 8 November 2008, the applicant handed himself into the police on 18 November 2008.  He was thus unlawfully at large while on parole for a period of 10 days.  This period also has now to be added onto the remaining time for parole.

[9] By reason of the commission of the subject offences, the learned sentencing judge was required to apply s 156A(2) of the Penalties and Sentences Act which provides that the sentence must be ordered to be served cumulatively with any other term of imprisonment the applicant was liable to serve.  When pronouncing the subject sentences, the learned sentencing judge intended to give effect to this section but she expressed the order in terms that the sentences were to be served “cumulatively on the term of imprisonment imposed on you in the District Court on the 26th of October 2006” – i.e. the four year term of imprisonment.  The order framed in those terms does not take into account the additional periods of imprisonment and therefore does not satisfy the requirements of s 156A(2).

[10]  In her calculation of the fulltime release date for those sentences her Honour arrived at the date of 18 September 2010.  Then, intending that the applicant should serve 16 months of the new term, her Honour fixed a new parole eligibility date at 18 January 2012.  In making the calculation, it is acknowledge by all parties that her Honour did not take into account the additional periods of imprisonment, nor the 10 day period when the applicant was unlawfully at large.

[11]  It is this error which the applicant relies upon in ground 2 in the proposed appeal.  The error as it stands is clearly in the applicant’s favour.  If the appeal proceeds, the error would have to be corrected with the result that the commencement date for the subject sentences would be deferred for a period of eight months and a few days.  If the discretionary elements of the sentencing process below are not disturbed then a more severe sentence will result from the appeal.

[12]  Such a prospect undoubtedly exists and would, in the event leave is granted, require the Court to give to the applicant an opportunity to abandon his appeal.[1]  Mr Benjamin of Counsel for the applicant informed the Court that if an intimation was given that a more severe sentence would be imposed by this Court he held instructions to give notice to abandon the appeal.  As a consequence the Court is being invited not to consider any appeal against sentence under s 668E(3) of the Criminal Code but to consider quite distinctly, the separate grant of leave to appeal.

[13]  Ordinarily, an error of the scale referred to above would result in leave to appeal being granted, particularly if detrimental to a defendant.  In R v KAC[2] Keane JA considered the materiality of error in the sentencing process.  He cited the decision of the Court of Appeal of New South Wales in R v Burke[3] in terms: -

“[83]...Where the sentence is not manifestly excessive, the appellate court must quash the sentence and re-sentence the offender if – and only if – (a) the sentence imposed below is vitiated by error, and (b) the sentence is more severe than the appellate court would have imposed and, necessarily, would now impose on re-sentencing the offender.

…

[86]...However … some refinement is necessary. For example, if there were error in the sentencing process below which cannot have made any material difference to the result, the appellate court would not intervene, even if it would have imposed a less severe sentence were it re-sentencing the appellant."

[14]  Here, the error adversely affects the sentence contended for by the prosecution but the Crown does not seek leave to appeal against the sentence.  That means that if this Court on appeal determines to correct the error it would have to act on its powers under s 668E(3) which provides:-

“On an appeal against a sentence, the Court, if it is of the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.”

[15]  Commenting on this section Gibbs CJ said in Neal v The Queen (supra) (at p 307):-

“It is apparent from the words of the sub-section that the power which s 668E(3) confers is exercisable only on an appeal.  In other words, the power is only exercisable when leave to appeal, which is necessary under s 668D before an appeal may be brought against a sentence, has been granted.  The authorities have recognized what the section itself makes clear … From this there follows a curious consequence.  By r 22 of the Criminal Practice Rules of 1900 an appellant may at any time after he has duly served notice of appeal or of application for leave to appeal may abandon his appeal by giving notice of abandonment in the prescribed form to the Registrar, and upon giving such notice the appeal shall be deemed to have been dismissed…The effect of r 22 is that an applicant for special leave to appeal who fears, as a result of observations made by the Court, that his sentence may be increased on an appeal, may abandon his appeal, at least before it has commenced, and may thus escape from the possibility of an increased sentence.”

[16]  In determining whether to grant leave to appeal, it is relevant to consider if the proposed appeal, whether based on error or miscarriage of discretion, has any utility.  In AB v The Queen,[4] Hayne J said: -

“[130] The difference between cases of specific error and manifest excess is not merely a matter of convenient classification.  It reflects a fundamental difference in what the appellate court does.  In the former case, once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh.  The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed.  By contrast, in the case of manifest excess, the error in reasoning of the sentencing judge is not discernible; all that can be seen is that the sentence imposed is too heavy and thus lies outside the permissible range of dispositions.  Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.”

[17]  In this instance where there is no appeal by the Crown, that utility has to be looked at from the perspective of the applicant.  In this context it is necessary to examine the factors which the learned sentencing judge took into consideration in the exercise of her discretion.

[18]  Firstly, it is to be noted that the learned sentencing judge was aware that any sentence she imposed would be served cumulatively upon earlier sentences.  This necessitated her having regard to the totality principle.  The applicant has an extensive criminal history, though as her Honour commented that because of the number of minor offences, it was “not as bad as it might look”.  Nonetheless, the combination of the older penalties and the subject penalties had the effect that a head sentence totalling nine years imprisonment were being imposed on a person who was 19 years of age at the time of his first offending.

[19]  The learned sentencing judge found that the circumstances of the armed robbery placed it at the lower end of the scale for that offence.  But the fact remained that the amount stolen of approximately $3,000 was not recovered.

[20]  The learned sentencing judge correctly identified the sentencing range having regard to the comparable cases to which he was referred.  In particular she adopted the penalty contended for by defence counsel.[5]  Cases which bear out the appropriateness of the sentence include –  R v Moodie,[6] R v Moss[7] and R v Suey.[8]

[21]  The learned sentencing judge took account of the relevant factors raised in mitigation, particularly those noted in the report of psychologist Mr Peter Jordan (ex3) which dealt with the motivation for his offending and the prospects of support and rehabilitation.  These factors, together with the applicant’s high level of cooperation by handing himself into the police, resulted in the applicant being favourably treated by having a parole eligibility date after serving a relatively short period of 16 months imprisonment.

[22]  I am not persuaded on the material and in the submissions thus far made on this application that the sentencing discretion has miscarried.  I cannot discern any basis upon which the major sentence of five years imprisonment should be disturbed.  That being the case, there seems to me to be no utility in the applicant undertaking the appeal.

[23]  This leaves open the approach of granting leave and allowing the applicant to elect whether to run the risk of an increased sentence or to abandon the appeal.  The alternative is to act upon the assessment that the applicant has little prospects of succeeding in the appeal and refuse leave on that basis. 

[24]  In such circumstances and given the intimation made by the applicant’s counsel, the most practical course, in my view, is to refuse leave.