R v Herbert[2013] QCA 62

SUPREME COURT OF QUEENSLAND

[1] MUIR JA: I agree that the application should be refused for the reasons given by Fraser JA.

[2] FRASER JA: On 28 June 2012 the applicant was convicted on his pleas of guilty and sentenced for numerous offences as follows: three and a half years imprisonment on each of four counts of break enter and steal, one count of fraud, one count of aggravated unlawful use of a motor vehicle and one count of aggravated dangerous operation of a motor vehicle; and lesser concurrent terms for three counts of fraud, three counts of attempted fraud, two counts of receiving, five counts of stealing, and two counts of possessing a Schedule 1 dangerous drug.

[3] The sentencing judge ordered that those sentences were to be served concurrently with one another but cumulatively upon sentences of imprisonment which had been imposed on 25 May 2011.  The sentencing judge fixed the date upon which the applicant would be eligible to apply for parole as 27 July 2014.  That date was 10 months after the full time release date (27 September 2013) under the 25 May 2011 sentence and 39 months after the commencement of the total period of imprisonment of 71 months (that is, three and a half months past the halfway point of that total period of imprisonment). 

[4] The applicant accepts that the effective head sentence of three and a half years imprisonment was within the range of appropriate sentences for the applicant’s offences, but he contends that the parole eligibility date should have been in December 2013. 

The applicant’s personal circumstances

[5] The applicant was 33 years old when he committed the offences and he was 34 years old when sentenced.  He had an unfortunate background, having sustained injuries in a car crash when he was young which led to his use of pain medication, followed by self-medicating for his pain and using heroin.  The applicant embarked upon an itinerant lifestyle and used amphetamine when he could not obtain heroin.  The applicant’s mother, who was his source of stability, had died.  The applicant first met his father some years before this sentence was imposed.  He had a lengthy criminal history in Victoria and Queensland.  In Victoria the applicant’s criminal history commenced in 1991.  After convictions for various property offences, the applicant was first given a sentence of imprisonment (wholly suspended) in 1996, and from the following year he was given many terms of imprisonment for property and motor vehicle offences, associated with his history of drug abuse, through to 2001.  In 2003 the applicant was convicted of theft and placed on a two year bond, with which he was found to have complied in 2005.  In that period, however, the applicant had committed several offences in Queensland.  In early 2004 the applicant was sentenced to 18 months probation, with a condition that he undergo counselling and treatment in relation to substance abuse, for a break and enter offence committed in late 2003.  The applicant breached that probation order by property and other offences (including an offence of robbery with actual violence whilst armed and in company, wounding and using personal violence) in July 2004.  For those and numerous subsequent offences the applicant was given sentences of imprisonment.  The Queensland criminal history records no convictions between early 2005 and late 2010, when the applicant was convicted of a breach of bail condition and thereafter of numerous property and drug offences.  On 25 May 2011 the applicant was convicted of offences of dishonesty for which he was given concurrent terms of imprisonment of two years, with a parole release date fixed on 20 July 2011.

[6] At the sentence hearing defence counsel submitted that despite the applicant’s criminal history he had a fair work history and was qualified as an arborist.  The applicant’s offending seemed to be attributable to his drug use.  In sentencing the applicant the sentencing judge observed that the applicant’s prospects of being drug-free in the future were not high unless he really turned his mind to that during the period he would have serve in prison.

The circumstances of the offences

[7] The applicant committed the offences not long after he was released on parole on 20 July 2011.  Most of the offences involved the possession of drugs and property offences or offences of dishonesty related to the applicant’s drug use.  He also unlawfully used two vehicles for which he obtained the fuel by fraud or theft.  Both vehicles were ultimately found destroyed.  In the dangerous driving offence the applicant drove a vehicle which he used unlawfully, and he also used that vehicle in a summary offence of evading police.  The total loss suffered by owners of goods taken by the applicant exceeded $50,000, but the sentencing judge acknowledged that much of that loss concerned the value of motor vehicles which were destroyed after the applicant had unlawfully used them and the applicant was not charged with that destruction. 

[8] The applicant’s parole was suspended on 9 September 2011.  He was found by police on 13 January 2012, hiding in a cupboard.  He did not give an interview.  The sentencing judge accepted that the applicant had entered an early plea and that he had co-operated with the administration of justice since his arrest.  The effective sentence of three and a half years imprisonment was intended to reflect the applicant’s criminality in all 22 offences.

Consideration of the grounds of appeal

[9] The first ground of the applicant’s proposed appeal is that the sentence “was manifestly excessive and did not correctly take into consideration my personal antecedents and totality.”  The applicant did not develop an argument that the sentencing judge did not take the applicant’s personal antecedents into account.  It is apparent from the sentencing remarks that the sentencing judge did so.  There is no basis for concluding that there was any error in that respect.  As to “totality”, the sentencing judge expressly had regard to the overall effect of the sentence.  As I have mentioned, the applicant accepted that the sentence of three and a half years imprisonment was within the range of appropriate sentences. 

[10] The applicant’s arguments focussed instead upon the second and third grounds of the proposed appeal, that (2) the setting of a parole eligibility date later than the midpoint of the total period of imprisonment rendered the sentence manifestly excessive, and (3) the sentencing judge erred by placing too much weight upon the extent to which the parole eligibility date would post-date the full time release date of the earlier sentence.

[11] The applicant submitted that the sentencing judge may have been led into error by the prosecutor’s reference to s 160G of the Penalties and Sentences Act 1992.  In reply submissions at the sentence hearing, the prosecutor accepted the correctness of a submission made by defence counsel that it was not common for a parole eligibility date to be fixed after the midpoint of a term of imprisonment but submitted that it was within the sentencing court’s discretion.  In that context, the prosecutor submitted that s 160G stated that the sentencing court could set a parole eligibility date upon any date the court saw fit and that the sentencing judge should provide reasons where the parole eligibility date was after the midpoint of the sentence. 

[12] As was submitted for the applicant, s 160G was inapplicable.  That section empowers courts to fix any day of the offender’s sentence as the offender’s parole release date.  Here the issue concerned a parole eligibility date in a case in which a cumulative sentence was imposed upon an existing sentence of imprisonment.  The applicant submitted that the relevant provision was s 160F.  It provides:

“(1)One of the objects of sections 160A to 160E is to ensure that at any 1 time there is only 1 parole release date or parole eligibility date in existence for an offender.

(2)When fixing a date under this division as the date an offender is to be released on parole or is to be eligible for release on parole, the date fixed by the court must be a date relating to the offender’s period of imprisonment as opposed to a particular term of imprisonment.”

[13] The applicant submitted that the prosecutor’s incorrect citation of s 160G may have contributed to an inappropriate focus on the proportion of the new sentence which would be served if the parole eligibility date were fixed at the midpoint of the total period of imprisonment, in about December 2013.  The applicant acknowledged that the fact that the applicant had committed a fresh series of offences on parole made it appropriate (and in the case of the offence of dangerous operation, mandatory) to impose a cumulative sentence, but he argued that it did not justify the “additional punishment” of deferring parole eligibility beyond the midpoint of the total term.  The applicant argued that s 160F of the Penalties and Sentences Act 1992 was of particular significance in the context of ss 184 and 209 of the Corrective Services Act 2006; its significance was to rebut any presumption that, upon a breach of parole, a prisoner must serve the whole of the balance of the term of the existing sentence in prison before becoming eligible to apply for parole. 

[14] The sentencing judge’s discretion in this case, as in many similar cases, certainly extended to requiring the applicant to serve both the remainder of his existing term and a substantial part of the new, cumulative term before becoming eligible to be considered for parole.  The applicant’s pre-existing parole order was cancelled by the imposition of the fresh sentence of imprisonment.[1]  Unless the sentencing judge fixed a new parole eligibility date,[2] the applicant’s parole eligibility date would become “the day after the day on which the prisoner has served half the period of imprisonment to which the prisoner has been sentenced, despite any grant of remission.”[3]  The expression “period of imprisonment” means “the unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment, whether…ordered to be served concurrently or cumulatively; or…imposed at the same time or different times…”.[4]  However, the sentencing judge’s power to fix the date upon which the applicant would be eligible for parole was conferred by s 160C of the Penalties and Sentences Act 1992 in unqualified terms:

“…the court may fix the date the offender is eligible for parole…”[5]

[15] As was submitted for the respondent, no provision restricted the sentencing judge’s discretion to fix the parole eligibility date.  The prosecutor’s submission that the sentencing judge could set a parole eligibility date at whatever date the sentencing judge thought fit was accurate.  It is true that the prosecutor should have referred to s 160C of the Penalties and Sentences Act 1992 rather than to s 160G of that Act, but the mistake was inconsequential.  Section 160F does not have the significance attributed to it in the applicant’s submissions: s 160F(2) merely makes it plain that a parole release date or a parole eligibility date fixed by the court must relate to the total duration of imprisonment.  The sentencing judge understood as much.

[16] The sentencing judge proceeded on the footing that there should be some “good reason” for fixing the parole eligibility date at a date later than the midpoint of the total term of imprisonment.  That was too favourable to the applicant.  It was a reference to the authorities discussed in R v Kitson.[6]  As Chesterman JA (with whose reasons I and Mullins J agreed) pointed out in R v Rowe[7] that approach is not applicable in relation to a period of imprisonment comprised of an existing term and a new, cumulative term imposed for offences committed whilst on parole.  One reason why there can be no general rule in this kind of case is that the midpoint of the total period will vary according to the relative length of the terms which make up the total period.  Another reason is that by the time of the second sentence, the prisoner will have served part of the first sentence on parole.  It is also relevant to note that the requirement to serve the remainder of the original sentence in prison flows primarily from that sentence rather than from the subsequent sentence. 

[17] The sentencing judge referred to two features of the case in relation to the parole eligibility date.  First, his Honour observed that a parole eligibility date 12 months after the date of sentence, which was then contended for by the Crown, was significantly sooner than the midpoint of the cumulative term of imprisonment the sentencing judge might impose.  The second feature, which the sentencing judge described as being more important, was that the applicant committed each of the 22 offences after having served part of the sentences imposed earlier and when the applicant was on parole for those sentences.  The sentencing judge concluded that, whilst it was important for reasons of totality to have regard to the overall effect of any sentence, including any parole eligibility date because of the earlier sentences, “the fact that those offences were a quite separate series of offences committed whilst on  parole…[justified]…setting a parole eligibility date beyond the midway point of any aggregated sentence…”.

[18] It is apparent that the most significant factor in the setting of the parole eligibility beyond the midpoint of the overall term was that the applicant committed a separate series of offences whilst on parole and despite having been imprisoned under the earlier sentence.  That approach was conventional and certainly within the sentencing judge’s discretion.  Nor was there any error in the sentencing judge taking into account that the parole eligibility date which he imposed was significantly earlier than the midpoint of the new cumulative term.  The sentencing judge was entitled in the circumstances of this case to consider that a parole eligibility date which was close to the full time release date for the pre-existing sentence would be inappropriately lenient.  Contrary to the applicant’s argument, this did not involve “additional punishment”. 

[19] The applicant’s arguments were advanced and rejected in R v Matue,[8] R v McQuillan,[9] and R v Rowe.[10]  A similar approach had earlier been taken in R v Bulmer.[11]  I have written at length on this point only because the applicant challenged the correctness of those decisions.  I would respectfully adopt those decisions as exemplifying the correct approach. 

[20] The applicant referred to cases in which the High Court emphasised the importance of the text of relevant statutory provisions.[12]  The sentencing judge correctly apprehended that the task was to fix a parole eligibility date with reference to the total period of imprisonment.  Nothing in the relevant legislative provisions precluded the sentencing judge from having regard to the extent to which the parole eligibility date would post-date the full time release date under the pre-existing term of imprisonment. 

[21] There was no error in the exercise of the sentencing discretion.  The sentence was not manifestly excessive, either in relation to the parole eligibility date or at all.

Proposed order

[22] I would refuse the application.

[23] DOUGLAS J: I also agree that the application should be refused for the reasons given by Fraser JA.