R v Fisher[2014] QCA 302

SUPREME COURT OF QUEENSLAND

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

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

[3] HENRY J:  On 22 May 2014 the applicant pleaded guilty to one count of indecent treatment of a child under 12 and one count of unlawful stalking.  He was sentenced to terms of two years imprisonment and six months imprisonment respectively.  Those sentences were ordered to be served concurrently with each other but cumulatively upon the sentence he was serving.  No parole eligibility date was fixed.

[4] The applicant seeks leave to appeal his sentences for indecent treatment and stalking on the grounds they are manifestly excessive.

Background

[5] The applicant is a 44 year old indigenous man with an appalling criminal history.  At the time of sentence his 10 page criminal history included reference to 32 separate court appearances at which he was sentenced to imprisonment.  His criminal history included an array of offences against the person and against property.  It included a sentence of 18 months imprisonment imposed in 2002 for indecent treatment of a child under 12.  That matter involved him locking a 10 year old child in a room and indecently exposing himself to the child.

[6] On 31 October 2012 the applicant was sentenced to three years imprisonment for a variety of property offences.  He had already served 386 days of pre-sentence custody and the date for his release on parole was fixed as the date of sentence, 31 October 2012.  On 20 November 2012, only 20 days after his release on parole, he committed the first of the two offences presently under consideration.

The offending

[7] The 10 year old female complainant was reading books in the books section of a department store in Townsville one afternoon after school.  The applicant approached her and enquired what school she went to.  She did not respond.  He looked at her uniform and said, “Oh that school down the road”.  She continued to read.  The applicant was then seen standing very close to the complainant with his erect penis in his hand masturbating himself and making low grumbling noises.  This conduct gave rise to the charge of indecent treatment of a child under 12.

[8] A witness to this activity caught the attention of staff.  In the meantime the complainant, who felt confused, moved away to the toy section.  She was followed by the applicant who continued to attempt to speak to her despite her attempts to walk away.

[9] Staff eventually caught her attention and led her away.  The applicant repeatedly told staff, “I was just having a look” and left the store prior to the police attending.

[10] He proceeded to his uncle’s house and told his uncle, “I flashed myself to a girl… and the police are looking for me”.

[11] Three days later the complainant was standing in the grounds of her school following an after hours Christmas event.  The applicant approached her and tapped her on the shoulder saying, “Hey”.  She walked away and told her school principal and the applicant left.  This conduct, in combination with the earlier event, gave rise to the charge of unlawful stalking.

[12] The applicant was arrested on 26 January 2013.  His parole was suspended the following day.

[13] According to the pre-sentence custody certificate tendered at the time of sentence his parole was cancelled by the parole board on 12 February 2013 and the full time expiry date for the sentence imposed on 31 October 2012 was 11 October 2014.

The sentence proceeding

[14] The learned Crown prosecutor below correctly informed the learned sentencing judge the sentence to be imposed had to be cumulative to the applicant’s then current term of imprisonment because he had committed schedule 1 offences while released on parole.^[1]

[15] The Crown prosecutor submitted his Honour was not obliged to fix a parole eligibility date and that he could have regard to the cumulative impact of the sentence process by reducing the head sentence.  Defence counsel did not submit against that approach.

[16] Defence counsel informed the court the applicant left home at 13 years old, ended up in juvenile detention and had spent much of his adult life in prison.  The sentencing judge noted in the course of submissions the applicant was “probably almost institutionalised”.  The applicant’s counsel agreed and explained arrangements had been made for the applicant to have access to a community agency when next he is released in the hope of him improving his future prospects of staying out of prison.

[17] In the course of sentencing submissions below the sentencing judge noted that the indecent treatment offence was more serious than the stalking charge.  In sentencing the applicant the sentencing judge took into account the applicant’s pleas of guilty but noted the greatest difficulty was his “dreadful criminal history”.  His Honour also had regard to the applicant’s previous conviction for an indecent treatment offence and to the fact he was on parole when he committed the present offences.

[18] His Honour noted he had to have regard to principles of totality because the sentence to be imposed would be cumulative upon his current term of imprisonment.  By this his Honour meant he needed to consider the total combined period of imprisonment to ensure the cumulative effect of the sentence did not result in a penalty which was unjust in all the circumstances.^[2]

[19] In fixing no parole eligibility date his Honour indicated he was mindful of the fact the applicant’s “prospects of parole are probably not great, given his record”.  His Honour noted the ordinary statutory provisions would take effect – a reference to the parole eligibility date of a prisoner in such circumstances being 50 per cent of the period of imprisonment imposed.^[3]

Discussion

[20] The applicant, who was self represented, advanced a variety of submissions, of a kind relevant to the decision making of the parole board, which are of no relevance in the present context.  His written submissions also made a number of allegations about his legal representation but none were supported by evidence.  On one interpretation of his submissions he may also have been complaining he did not make the alleged admission to his uncle.  Even if his complaint was supported by evidence, which it was not, that would be irrelevant because he pleaded guilty to the offences and makes no suggestion he was not guilty of them.

[21] The respondent’s counsel, mindful the applicant was self represented, ventilated a potential argument that the sentencing judge was obliged to fix a parole eligibility date rather than merely having the discretion to do so.

[22] Section 160D of the Penalties and Sentences Act 1992 (Qld) relevantly provides:

“160D Sentence 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. …” (emphasis added)

[23] It will be recalled the applicant’s previously court ordered parole had been cancelled well prior to the date of sentence.  Where court ordered parole has been cancelled under the Corrective Services Act 2006 (Qld), as occurred here, s 184 of that Act relevantly provides:

“184 Parole eligibility date for other prisoners

…

(2)The prisoner’s parole eligibility date is 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. …”

[24] The potential argument identified by the respondent’s counsel was that because at the time of sentence the applicant was serving a term of imprisonment in respect of which his court ordered parole had been cancelled and his parole eligibility date was, by virtue of s 184, the day after the day on which he had served half of that period of imprisonment, he therefore had a “current parole eligibility date” within the meaning of s 160D(2).  If that reasoning were correct the court would have been obliged by s 160D(2) to fix the date he would be eligible for parole.  It is not correct.

[25] As de Jersey CJ explained in R v Glebow,^[4] a “current parole eligibility date” as defined for division 3 of part 9 of the Penalties and Sentences Act 1992 (Qld), is a reference to a parole eligibility date fixed under that part and not by operation of the Corrective Services Act 2006 (Qld).  Section 160 in division 3 provides definitions for the division including:

“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.

…

parole eligibility date, for an offender, means 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.”

[26] Section 160A provides inter alia that ss 160B-160D apply if a court is imposing a term of imprisonment.

[27] If the applicant did have a parole eligibility date within the meaning of division 3 then it would have been cancelled under s 160(E) on the imposition of the new term of imprisonment and would thus have met the definition of “current parole eligibility date” in s 160.  However he did not by the time of sentence have a “parole eligibility date” as defined by s 160.  He once had such a date but it had been cancelled and to the extent that he had any new parole eligibility date it was a date fixed by the operation of the Corrective Services Act 2006 (Qld) and not fixed pursuant to the sections of division 3 part 9 of the Penalties and Sentences Act 1992 (Qld).  It follows, as the sentencing judge was correctly informed at first instance, that there was a discretion, not an obligation, to fix a parole eligibility date.

[28] His Honour expressly chose not to fix a parole eligibility date because of the applicant’s doubtful prospects of parole.  It is implicit in the taking of that course that his Honour must have taken the applicant’s plea of guilty and the cumulative effect of the sentence to be imposed into account in arriving at the head sentence of two years imprisonment.

[29] The former was relevant in mitigation of penalty by reason of s 13 of the Penalties and Sentences Act 1992 (Qld).  The latter was relevant to take into account for the purpose of punishing in a way that was just in all the circumstances pursuant to s 9(1)(a) of the Penalties and Sentences Act 1992 (Qld).

[30] The learned sentencing judge was not obliged to specifically identify to what extent he was discounting the sentence to allow for these considerations however his remarks clearly indicated he was doing so.  Reference to the authorities does not suggest the discounting was inadequate.

[31] The maximum penalty for the offence of exposing a child under the age of 12 to an indecent act contrary to s 210(1)(d)(3) of the Criminal Code is 20 years imprisonment.  In an era when a maximum penalty for that offence was only 10 years, head sentences of two years for offending of the kind the applicant engaged in were imposed in R v Halvosen^[5] and R v Schwob^[6] and a head sentence of 18 months was imposed in R v Sivel.^[7]  None of those offenders had criminal histories remotely as extensive as this applicant.

[32] In R v Porter; Ex parte Attorney-General (Qld)^[8] this court declined to interfere on an Attorney’s appeal with a head sentence of two years for offences including three counts of exposing a child under the age of 12 to an indecent act.  The circumstances of that offending considered in isolation were more serious than that in which the applicant engaged.  However that offender only had a minor criminal history, had suffered organic brain damage subsequent to a motor vehicle accident and a psychologist opined he was highly unlikely to offend again.

[33] Having regard to the applicant’s appalling criminal history, his like previous convictions and his persistence in re-offending so soon after his release on parole a head sentence at least a year longer than the eventual sentence would have been within the range of the sound exercise of the sentencing discretion and would not have been disproportionate to the gravity of the offence.^[9]  This demonstrates that material allowance was made by the learned sentencing judge for the applicant’s plea of guilty and the cumulative impact of the sentence.

[34] It has not been shown the sentences imposed were manifestly excessive.  I would refuse the application for leave to appeal the sentence.