R v Fisher[2013] QCA 311

SUPREME COURT OF QUEENSLAND

[1] FRASER JA:  I agree with the reasons for judgment of Henry J and the orders proposed by his Honour.

[2] GOTTERSON JA:  I agree with the orders proposed by Henry J and with the reasons given by his Honour.

[3] HENRY J:The applicant pleaded guilty in the District Court to six counts of receiving tainted property, one count of unlawful use of a motor vehicle to facilitate the commission of an offence, one count of fraud and one count of burglary and stealing.  On 3 April 2013 he was sentenced to concurrent sentences of two years imprisonment for the charge of burglary and stealing, one month imprisonment for the charge of fraud and 12 months imprisonment for each of the remaining charges.

[4] Those terms of imprisonment were ordered to be served concurrently with each other but cumulatively upon a sentence the applicant was then serving.  His Honour set the applicant’s parole eligibility date at 10 May 2014, after the expiry of one third of the sentence.

[5] The applicant applies for leave to appeal the sentence on the ground it was manifestly excessive.  The true gravamen of his complaint is not that the sentences imposed were per se manifestly excessive but rather that they are of that effect by virtue of errors in information put before the court below about the applicant’s pre-sentence custody and full-time release date.

[6] The length of the head sentence of two years was unremarkable in light of the applicant’s background and the circumstances of the offending.  The applicant, now 34, is a recidivist property offender, with multiple previous convictions for offending of the kind for which he pleaded guilty.  By the time of sentence he had been convicted and sentenced on eight separate occasions in the past for offences of burglary or break and enter with intent.  His offending is probably connected with an addiction to drugs but the significance of that consideration upon penalty has diminished with his repeated failure to take up past opportunities for reform.  He has previously breached probation orders, community service orders, intensive correction orders and suspended sentences.  The present offending occurred when the applicant was on parole and, for part of the time, on a suspended sentence.

[7] The offending involved six instances of receiving tainted property stolen in five burglaries and one theft from a business premises.  The unlawful use of a motor vehicle charge related to a motor vehicle stolen in one of the burglaries and the fraud charge related to the uttering of a voucher stolen at one of the burglaries.  The applicant’s involvement in the burglary, to which he pleaded guilty, was discovered through DNA evidence, the applicant apparently having cut himself on a kitchen window when breaking into the complainant’s home.  He ransacked her home and stole in excess of $10,000 worth of jewellery.

[8] The learned sentencing judge was of the view that a head sentence in the order of three years was warranted but because he was imposing it cumulatively upon another sentence being served by the applicant he reduced it to two years, in accordance with the totality principle.[1]  The learned sentencing judge further moderated the penalty to take into account the plea of guilty by ordering the applicant be eligible for parole after serving one third of the term of imprisonment.  His Honour’s setting of a parole eligibility date at 10 May 2014 represented an extension of the old parole eligibility date by eight months, being the intended one third of the cumulative head sentence imposed by his Honour.

[9] The sentence imposed was moderate and comfortably within the range of the soundexercise of the sentencing discretion, as illustrated by reference to cases such as R v Heath & Anor,[2] R v Bryant,[3] R v Howie[4] and R v Watson.[5]

[10] The applicant complains that the information before the learned sentencing judge as to the applicant’s then full-time release date was incorrect and that a period of time he had been in custody should have been, but was not, declared as pre-sentence custody.  There is substance to both complaints.

[11] The learned sentencing judge was informed the applicant’s full-time release date was 24 January 2014[6] and his existing parole eligibility date was 10 September 2013.[7]  The latter information was correct but the information about the full-time release date was wrong.

[12] The applicant was sentenced on 15 June 2012 to 12 months imprisonment, being the activation of the whole of a suspended sentence imposed on 14 December 2010.[8]  On 24 October 2012 he was sentenced to 15 months imprisonment concurrent with his existing sentences.  This would have given him a full-time release date of 24January 2014, the date given to his Honour, but for the fact that on 19 February 2013 he had been given a further sentence of 12 months imprisonment that was ordered to be served cumulatively.

[13] The applicant submits the sentence of 19 February 2013 would have increased his full-time release date by 12 months to 24 January 2015.  However, information accepted by this Court on the application shows the cumulative 12 month sentence of 19 February 2013 was actually ordered to be served cumulatively upon the earlier 12 month sentence imposed on 15 June 2012, the full-time release date for which would have been 15 June 2013.  It follows that the full-time release date was 15June 2014 and not, as his Honour was told, 24 January 2014.

[14] The error as to the full-time discharge date, which was not of his Honour’s making, has no bearing upon the parole eligibility date imposed by his Honour.  However, his Honour ordered the two year sentence he imposed be served cumulatively upon “the sentence presently being served” by the applicant.  The ordinary meaning of such an order, and the meaning which would inevitably be given to it by prison authorities, is that the sentence imposed is cumulative upon the existing total period of imprisonment being faced by the prisoner at the time of sentence.  That period was almost five months longer than his Honour understood it to be.  The relevant tempering of the head sentence in accordance with the totality principle was wrongly premised upon the applicant ultimately having to, at worst, serve to 24January 2016, when he may in fact have had to serve to 15 June 2016.

[15] The respondent concedes the error enlivens this Court’s discretion to intervene.

[16] The sentence imposed was the appropriate sentence if premised, as it was, on the existing full-time discharge date being that arising from the sentence imposed on 24October 2012, not the sentence imposed on 19 February 2013.  That intention can be effected by ordering that the sentences be served cumulatively upon the sentence imposed on the applicant on 24 October 2012.

[17] As to the applicant’s complaint regarding pre-sentence custody, the learned sentencing judge was informed by the prosecution,[9] based on the content of the Pre-Sentence Custody Certificate which was tendered on sentence,[10] that there was no pre-sentence custody to be declared pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld).

[18] It has emerged from the information put before this Court on the application that in fact the applicant was in custody in relation to proceedings for the present offences and for no other reason for 14 days, from 18 April 2012 to 1 May 2012.  The applicant complained his pre-sentence custody was longer than that because he was not sentenced again until 15 June 2012, but it transpires he was released on bail on 1May 2012 and arrested for fresh offending on 20 May 2012.  His short time in custody between then and 15 June 2012 related to matters for which he was sentenced on 24 October 2012 and is irrelevant to this proceeding.

[19] The applicant is entitled to a declaration relating to the fortnight of pre-sentence custody and his parole eligibility date should be shortened by two weeks to preserve the intention that he serve a total of eight months (one third) of the head sentence before being eligible for parole.

[20] I would:

1. Grant leave to appeal against sentence.

2. Allow the appeal against sentence.

3. a. Vary the order that the sentences be served cumulatively upon the sentence presently being served, to an order that the sentences be served cumulatively upon the sentence imposed on the applicant on 24 October 2012.

b.Vary the parole eligibility date, set at 10 May 2014, to 26 April 2014.

c.Declare that the time the applicant was held in pre-sentence custody, between 18 April 2012 and 1 May 2012, a period of 14 days, is taken to be imprisonment already served under the sentences.

4.Otherwise confirm the orders imposed by the sentencing judge.