R v Braeckmans[2022] QCA 25

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  I agree with the reasons of McMurdo JA.

2. [2]
   McMURDO JA:  This is an application for leave to appeal against sentences which were imposed in the District Court for offences committed in the course of two home invasions in October 2019.
3. [3]
   The applicant was sentenced on 6 November 2020, having been convicted on his pleas of guilty.  Various terms of imprisonment were imposed, to be served concurrently with each other, the longest of which was a term of nine years imposed for an offence of robbery, in company and with personal violence.  That offence was declared to have been a serious violent offence.^[1]
4. [4]
   The applicant was on parole when he committed these offences.  He had been paroled on 10 June 2019, in the course of serving a sentence which was imposed in December 2017 and for which the full time release date was 31 May 2021.  His parole eligibility date, under that sentence, was 31 May 2018.
5. [5]
   Consequently, some of these sentences had to be ordered to be served cumulatively with the 2017 sentence, because of s 156A of the Penalties and Sentences Act 1992 (Qld).  That section applied because the applicant was convicted of offences against a provision mentioned in schedule 1 of the Act and which were committed while he was released on parole.  Section 156A(2) requires that in such a case, a sentence of imprisonment which is being imposed must be ordered to be served cumulatively with any other term of imprisonment the offender is liable to serve.
6. [6]
   The sentencing judge ordered each of these terms to be served cumulatively with the 2017 sentence.  What that meant, according to s 156 of the Act, was that the imprisonment which was then being imposed was to “start from the end of the period of imprisonment the offender [was then] serving”.  More specifically, it meant that the subject terms were to commence on 1 June 2021.
7. [7]
   Nevertheless his Honour was persuaded to declare, purportedly pursuant to s 159A of the Act, that the applicant had served already some of the imprisonment under these sentences.  He declared that a total of 153 days, between 5 June 2020 and 5 November 2020, was imprisonment already served.  Whether that declaration was consistent with the requirements of s 156A, that the subject sentences start from a future date, is a question to which I will return.
8. [8]
   There are several errors which the applicant says were made by the judge in this case.  One of them is conceded, correctly, by the respondent.  It is that the judge did not fix the date for which the applicant would be eligible for parole.  Section 160D(2) required the judge to fix a new parole eligibility date, because the applicant at that time had a “current eligibility date” and he was being sentenced to a term of imprisonment for a serious violent offence.  Section 160 defines a current parole eligibility date for relevant purposes as a parole eligibility date previously fixed for the offender in relation to another term of imprisonment and cancelled under s 160E.  What had been his parole eligibility date (1 June 2018) was automatically cancelled, by the operation of s 160E(2)(b).
9. [9]
   It is common ground, therefore, that the applicant should be re-sentenced.  It is unnecessary for the applicant to establish his ground of appeal that the sentences, more particularly the term of nine years with a declaration of a serious violent offence, were manifestly excessive.
10. [10]
    Another ground is that the judge erred by not identifying the offence to which the declaration of a serious violent offence applied.  Towards the end of his sentencing remarks, the judge said:

“I will direct that there be a serious violent offender declaration issued in respect of your offending.”

The Verdict and Judgment Record, however, records that the declaration attached to the offence for which the term of nine years was imposed.

11. [11]
    Apart from the offence for which the nine year term was imposed, four of the other offences^[2] were offences against a provision mentioned in schedule 1 of the Act and for which the judge imposed sentences ranging from five years to seven years.  Consequently, those four offences might have been declared as serious violent offences under s 161B(3).  The remaining five offences could not have been declared.  It should not be understood that the judge meant to make a declaration for all 10 offences.  And there was no practical reason for him to make a declaration for anything other than the offence for which the longest term was being imposed, given that the terms were to be served concurrently with each other.  It is sufficiently clear that the declaration was made only in respect of the most serious offence.

The facts of the offences

12. [12]
    The offences were committed in two separate incidents of a home invasion, which were detailed in an agreed schedule of facts tendered at the sentencing hearing.
13. [13]
    On 8 October 2019, at about 3 am, the applicant and a co-offender entered the house of a 91 year old woman, went into her room and told her to “stay here, or you’ll cop it too.”  They then went into the room occupied by her son, a 59 year old man who lived there as his mother’s full time carer, and struck his head with a torch.  The son had no further memory of the incident from that point, but his mother recalled hearing shouting and thumping coming from her son’s room.  The applicant and his co-offender stole property from the house and wilfully damaged a car at the house which belonged to the mother.  They then stole the son’s car as they left.  The son suffered a number of injuries, including a depressed skull fracture of the temporal bone.
14. [14]
    Four offences were committed in that incident.  One was an offence of armed robbery, in company with personal violence, for which a term of seven years was imposed.  Another was an offence of burglary, by breaking, in the night, with violence, while armed and in company, for which a term of five years was imposed.  There was an offence of unlawfully using a motor vehicle and an offence of wilful damage (to the front door), each of which resulted in a term of two years.
15. [15]
    On the morning of 9 October 2019, the applicant was driving the car which he had stolen in the first incident.  He reached a place on the Bruce Highway where roadworks were being undertaken, and vehicles travelling in his direction had been stopped to allow south bound traffic to pass through the area.  The applicant did not stop, and drove through the area overtaking several stationary vehicles and weaving through the path of incoming traffic, all at a speed of 100 kilometres per hour in an area which had speed limits of 40 or 60 kilometres per hour.  Soon after a bystander flagged down police and informed them that they had seen the car speeding towards bushland on Calliope River Road, West Stowe, where police located the car abandoned on a property along that road.  Two police officers saw the applicant and another person running towards a cabin.
16. [16]
    The occupier of the cabin, a 62 year old man living alone, was sitting on his bed when the applicant and his companion entered the cabin, and the applicant placed the man in a chokehold while the companion searched the cabin.  When the man resisted, the applicant punched him in the face, causing him to bleed from the nose.  The applicant then struck the man in the stomach, chest and shoulders and demanded the man’s car keys.  Pinning the man to bed, the applicant said “I am going to kill you”.  The man managed to escape the cabin and sought to flee in his car which was parked nearby.  As he reached the driver’s door, the applicant pushed him in the back causing him to collide with the driver’s mirror.  The man was unable to get back to his feet.  The applicant and his companion drove away in the man’s car before encountering several police cars parked at the bottom of the man’s driveway to prevent their escape.  At speed, the applicant drove through a wire fence and accelerated towards the police cars.  Police managed to get out of his path, but the applicant drove into a stationary police car.  After attempting to drive away, the applicant was apprehended.  The man whose home was invaded suffered a fractured left hip and a wedge compression fracture of the L1 spinal bone.  He had to undergo a total left hip replacement, and the fracture to his hip was conceded to have involved grievous bodily harm.
17. [17]
    In this incident, the applicant committed the offence of robbery, in company and with personal violence, for which the nine year term was imposed.  He committed an offence of burglary, with violence in company, for which six years was imposed.  A term of five years was imposed for the offence of causing grievous bodily harm.  Terms of two years’ imprisonment were imposed for two offences of the dangerous operation of a vehicle and one of 18 months for the unlawful use of a vehicle.

The applicant’s antecedents and criminal history

18. [18]
    The applicant was born in 1980, and was aged 39 at the time of these offences and 40 when he was sentenced.  He had an extensive criminal history.  His offending commenced when he was aged 17.  Much of it was drug related and there were previous convictions for violence.  Most relevantly, the offence for which he was sentenced in December 2017 involved another home invasion.
19. [19]
    In September 2015, the applicant was sentenced on a number of offences, including a term of 16 months for an offence of entering premises and committing an indictable offence by break, for which a parole release date was fixed at 20 February 2016.  He was released on parole on 19 February 2016 under that sentence, for which the full time release date was 10 January 2017.
20. [20]
    He went back into custody on 2 December 2016, when he was remanded in relation to several offences which included one of entering a dwelling with intent and making threats.  He was sentenced for those offences on 8 December 2017, to terms which included a head sentence of four and a half years for the offence of entering a dwelling with intent and threatening violence whilst armed in company and a term of three years’ imprisonment upon a similar offence.  It was declared that he had spent 372 days in pre-sentence custody, between 1 December 2016 and 7 December 2017.  As earlier noted, his parole eligibility date was fixed at 31 May 2018.  He was released on parole on 13 November 2018, but his parole was suspended on 25 January 2019 before he was re-released on parole on 10 June 2019.

Pre-sentence custody

21. [21]
    Having been returned to custody on 10 October 2019, the applicant was on remand for 392 days until he was sentenced for these offences on 6 November 2020.  It was common ground at the sentencing hearing that, by the operation of s 159A of the Act, that period of time was time in which the applicant was held in custody in relation to proceedings for the subject offences, with the result that it had to be taken to be imprisonment already served under the sentences, unless the Court otherwise ordered.
22. [22]
    The sentencing judge decided that he should displace, in part, the operation of s 159A(1), by declaring as pre-sentence custody a total of 153 days between 5 June 2020 and 5 November 2020.  His Honour reasoned as follows:

“I am going to give you some credit for your presentence custody. [Your counsel] asks for full credit. It is plain, having regard to my view of your situation, that you are a serious violent offender. You will therefore only be entitled to 20 per cent of your credit for time served. On my rough reckoning, that means that there is about three months of lost opportunity over the last 13 months whilst you have been on remand and two months of lost opportunity for earlier parole for the period between now and when you achieved the full time date of the current sentence you are serving.

Bearing in mind, of course, the sentences I impose today will be cumulative upon the sentence that you are presently serving, and again that factor has been factored into my deliberations on the ultimate head sentence. So there will be a presentence custody declaration of what I would estimate to be 153 days, which should be five months. That is between the 5^th of June 2020 and the 5^th of November 2020. That matter no doubt will be reckoned into the figures when it comes to calculating the parole eligibility date having regard to the serious violent offender declaration.”

23. [23]
    There was, in my respectful view, a fundamental error in that application of s 159A.
24. [24]
    Section 159A of the Act relevantly provides:

“Time held in presentence custody to be deducted

1. (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 must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders.

2. (2)
   Subsection (1) does not apply to—

1. (a)
   a period of custody of less than 1 day; or

2. (b)
   imprisonment of less than 1 day; or

3. (c)
   imprisonment that has been wholly suspended; or

4. (d)
   the suspended part of imprisonment partly suspended.

3. (3)
   If an offender was held in custody in circumstances to which subsection (1) applies, and the court has not made an order mentioned in subsection (3A), the sentencing court must, as part of the sentencing order—

1. (a)
   state the dates between which the offender was held in presentence custody; and

2. (b)
   calculate the time that the offender was held in presentence custody; and

3. (c)
   declare the time calculated under paragraph (b) to be imprisonment already served under the sentence.

(3A) Subsection (3B) applies if—

1. (a)
   an offender was held in custody in circumstances to which subsection (1) applies (presentence custody); and

2. (b)
   the sentencing court orders that the time, or part of the time, the offender was held in custody is not to be taken to be imprisonment already served under the sentence.

(3B) The sentencing court must, as part of the sentencing order—

1. (a)
   state the dates between which the offender was held in presentence custody; and

2. (b)
   calculate the time that the offender was held in presentence custody; and

3. (c)
   declare the part of the time that is taken to be imprisonment already served under the sentence or declare that no time is taken to be imprisonment already served under the sentence.

…

10. (10)
    …

proceedings for the offence includes proceedings that relate to the same, or same set of, circumstances as those giving rise to the charging of the offence.

…”

25. [25]
    In R v Wilson,^[3] this Court^[4] recently approved the judgment of Bowskill J in R v Whitely,^[5] who decided that s 159A empowers a sentencing court to make a declaration in relation to time for which the offender was on remand for the subject offence whilst serving a previous sentence of imprisonment.^[6]  Bowskill J reasoned that, in the terms of s 159A(1), an offender who has been remanded in custody on a charge is an offender held in custody in relation to proceedings for the offence regardless of whether the offender was in custody on remand on another charge or was serving a previous sentence.
26. [26]
    The present case, however, presents an issue which did not arise in R v Wilson, and if it did arise in R v Whitely, was not considered.  The issue is the interrelationship between s 159A and the requirement that in a case to which s 156A(2) applies, a sentence of imprisonment must be ordered to be served cumulatively with any other term of imprisonment the offender is liable to serve.
27. [27]
    As noted earlier, s 156 defines the effect of a cumulative order of imprisonment, by describing it as imprisonment which is “directed to start from the end of the period of imprisonment the offender is serving, or has been sentenced to serve”.  In the present case, each of the sentences was made cumulative upon the sentence of four and a half years which was imposed in December 2017.  They were directed to start from the end of the period of imprisonment which was defined by that earlier sentence, and which expired on 31 May 2021.  The subject terms of imprisonment were to be served from 1 June 2021.  At the same time however, by a purported declaration of pre-sentence custody, the judge declared that 153 days of each of those terms had been already served.
28. [28]
    Prior to its amendment in 2020, s 159A permitted a declaration of pre-sentence custody to be made only where the offender had been held in custody in relation to the proceedings for the subject offence “and for no other reason”.  Consequently the present issue did not arise under that provision.
29. [29]
    As Bowskill J observed in Whitely,^[7] the explanatory memorandum to the bill by which s 159A was amended stated that the amendment would “provide a sentencing court with increased flexibility in relation to the consideration of pre-sentence custody”, and the power now conferred by s 159A is broad.  Nevertheless, there is a tension between an interpretation of s 159A upon which the present orders were premised, and the requirement of s 156A for the subject terms of imprisonment to be ordered to commence from a future date.
30. [30]
    Section 156A leaves the sentencing court with no discretion:  in circumstances which engage the section, the sentencing court must impose a cumulative sentence.  On the other hand, s 159A provides a discretion to the sentencing court.  Where s 159A is engaged, the sentencing court may declare the whole of the time on remand for the subject offence as time spent in custody in serving the sentence, or it may declare some or none of it as time served.  Because s 159A does not mandate an allowance of pre-sentence custody, but instead leaves that to the sentencing court’s discretion, the two sections can be construed so that they give effect to harmonious goals.^[8]  The discretionary power under s 159A is an element of the court’s sentencing power, so that it must be exercised consistently with the requirements of the Act, including the specific requirement of s 156A.  Neither the terms of s 159A nor the explanatory note provide any indication of an intention that the amendment to s 159A was to allow sentencing courts to qualify the mandatory terms of s 156A.
31. [31]
    Consequently, in a case such as the present one, a sentencing judge must exercise the power under s 159A to avoid the consequence that a cumulative term of imprisonment will become in part a concurrent term.  A declaration of pre-sentence custody in the prisoner’s favour should not have been made in the present case.  Instead it should have been declared, pursuant to s 159A(3B)(c), that no time is taken to be imprisonment already served.

Re-sentence

32. [32]
    The respondent submits that the comparable cases indicate that a sentence for one of these two groups of offending alone would have attracted a head sentence of the order of six to seven years’ imprisonment, and that a head sentence of nine years’ imprisonment appropriately reflects the criminality of the two groups of offending taken together.  However, the respondent made that submission whilst saying that “due credit for the 392 days of custody served prior to the sentence preceding” should be given.  The effect of that submission would be to extend the applicant’s overall period of imprisonment by about seven years 11 months, from 1 June 2021, resulting in a full time release date of 1 May 2029.  The respondent does not seek the imposition of a serious violent offence declaration, saying instead that the parole eligibility date might be set at later than one-third of the term, and up to the halfway mark.  Again, that is upon the basis that allowance would be made for the 392 days of pre-sentence custody.  The effect of that submission, if the eligibility date were fixed at four years into the nine year sentence, would be an eligibility date at around 1 May 2024.
33. [33]
    The applicant submits that a head sentence might be imposed in a range of between five and seven years, with a parole eligibility date something later than the one-third mark of the head sentence but so as not to be crushing.  It is said that “the totality of the sentence could also be tempered by declaring more of the eligible pre-sentence custody”.  Again, that submission was made upon the premise that some pre-sentence custody could be declared, in the applicant’s favour.
34. [34]
    At the sentencing hearing, and in this Court, the prosecution referred to three cases of sentencing for offences committed in a violent home invasion.  One of them is R v Taki,^[9] in which the offender did grievous bodily harm with a weapon, and he had prior convictions for violence.  He was not on parole at the time of that offending and he was sentenced to six years’ imprisonment on the most serious of his offences, which was a burglary with violence.  This Court did not interfere with that head sentence, but reduced his non-parole period by three months.
35. [35]
    The second of these cases is R v Miller,^[10] where this Court reduced a sentence of four years’ imprisonment to a term of two and half years’ imprisonment for an offence of deprivation of liberty.  In that case, however, the offender was also sentenced to concurrent terms of five and half years’ imprisonment for burglary with a circumstance of aggravation and robbery in company with personal violence.
36. [36]
    In R v Amato,^[11] this Court did not disturb a sentence of seven years where there was an armed violent home invasion committed in company which also involved an armed robbery.  It was said that the starting point in that case, absent the applicant’s plea of guilty would have been nine years’ imprisonment.^[12]
37. [37]
    Apart from considerations of totality, a head sentence of the order of nine years’ imprisonment, imposed upon one of these offences to reflect the overall criminality across these two groups of offences and without the declaration of the commission of a serious violent offence, would not be inappropriate.  The respondent rightly concedes that there should not be such a declaration.
38. [38]
    The history of the applicant’s incarceration is set out earlier.  The whole of this sentence must be served cumulatively, and a head sentence of seven years would appropriately moderate the outcome for considerations of totality.
39. [39]
    The parole eligibility date should be fixed at the one-third mark, having regard to the applicant’s pleas of guilty.

Conclusion and Orders

40. [40]
    I would order as follows:

1. Grant leave to appeal.
2. Allow the appeal.
3. Vary the orders made in the District Court on 6 November 2020 by:
   1. varying the term of imprisonment of nine years, imposed on count 4 charged by indictment number 4332 of 2020, to a term of seven years’ imprisonment;
   2. deleting the declaration that the applicant had committed a serious violent offence;
   3. removing the declaration that the applicant had served pre-sentence custody and declaring instead that the applicant was held for a total of 392 days of pre-sentence custody between 10 October 2019 and 6 November 2020 and that none of that time is taken to be imprisonment already served under the sentence;^[13]
   4. fixing the applicant’s parole eligibility date as 1 October 2023.

41. [41]
    KELLY J:  I agree with the reasons of McMurdo JA and with the orders proposed by his Honour.