R v MEI[2024] QCA 223

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 6 June 2024 the applicant pleaded guilty and was sentenced at the Cairns District Court in relation to five offences.  All the offences were committed on 1 June 2022.
2. [2]
   The counts were as follows:

• Count 1, strangulation in a domestic setting;
• Counts 2 and 3, assault occasioning bodily harm;
• Count 4, assault occasioning bodily harm whilst armed; and
• Count 5, contravening a domestic violence order (with a circumstance of aggravation).

3. [3]
   For Count 1, which was the most serious offending and attracted the head sentence, the applicant was sentenced to three and a half years’ imprisonment.  For each of Counts 2, 3, 4 and 5 he was sentenced to imprisonment for two and a half years.
4. [4]
   All sentences were ordered to be served concurrently with each other.  The sentences attaching to Counts 1 to 4 were ordered to be served cumulatively “on any other term of imprisonment” which the applicant was liable to serve.  This was a reference to previous sentences of two and a half years imposed by the Cairns Magistrates Court on 27 September 2021.  The previous sentences of two and a half years were imposed for two offences of assault occasioning bodily harm (along with lesser concurrent sentences of 12 months for other domestic violence offences) involving the same complainant.
5. [5]
   Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), the learned sentencing judge declared 278 days of pre-sentence custody as time served under the sentence.  That was for the period 2 September 2023 to 5 June 2024 inclusive.
6. [6]
   A further 450 days which had been served in relation to the previous sentences of two and a half years was taken into account but not declared and resulted in the head sentence for Count 1 being reduced from a starting point of four years to three and a half years.
7. [7]
   The applicant was not arrested and returned to custody until 9 June 2022, which was eight days after he committed the offences on 1 June 2022.  According to the Pre-Sentence Custody certificate (PSC certificate) his full-time date for the previous sentences was adjusted by eight days to 1 September 2023.  Immediately following that, from 2 September 2023 to 5 June 2024, he was held in custody solely on remand in relation to the offending committed on 1 June 2022, a total of 278 days.
8. [8]
   Her Honour set a parole eligibility date at 9 June 2025.
9. [9]
   In relation to the previous sentences of two and half years, a period of 214 days of pre-sentence custody was declared as time served.  The applicant was released on parole on 17 December 2021 after having served a further 81 days.  He was therefore on parole when he committed the five offences on 1 June 2022.
10. [10]
    The applicant seeks leave to appeal against his sentence on two grounds:

1. The sentence is manifestly excessive insofar that the parole eligibility date was set too late in the sentence; and
2. The sentencing judge erred by effectively setting the applicant’s parole eligibility date beyond the midpoint of the period of imprisonment, contrary to her Honour’s express intention.

For the reasons which follow the sentencing judge erred in setting a parole eligibility date at 9 June 2025.  Her Honour was led into error however, by an incorrect submission by the prosecutor and two errors in the PSC certificate.  These errors make it necessary for this Court to re-exercise the sentencing discretion.

11. [11]
    An error in the structure of the sentence arose from a submission by the prosecutor that a parole eligibility date should be set by reference to the applicant’s total period of imprisonment of six years, calculated from 9 June 2022, being the previous sentence of two and a half years and the head sentence for Count 1 of three and a half years.  It was wrong, on any view, to calculate the parole eligibility date on the basis of a six-year period of imprisonment commencing on 9 June 2022.
12. [12]
    The first error in the PSC certificate is the notation that the applicant’s previous sentence expired on 1 September 2023.  This date was arrived at by simply adding the eight days when the applicant was at large to the previous sentence.  Having committed the offences on 1 June 2022, the applicant’s court ordered parole order was suspended by the Parole Board on the same day, pursuant to s 205(2)(c) of the Corrective Services Act 2006 (Qld) (CSA).  Section 205(2)(c) gives the Parole Board the discretion to suspend a parole order if the prisoner, subject to the parole order, is charged with committing an offence.  Section 206(3)(a) provides that when arrested, the prisoner must be taken to a prison if the order was suspended – to be kept there for the suspension period.  The effect of s 206(3)(a) is that when the applicant was returned to custody on 9 June 2022, he resumed serving his previous sentences.
13. [13]
    The applicant’s parole was not cancelled however, until he was sentenced on 6 June 2024.  This is the effect of s 209(1) of the CSA which provides:

3. “(1)
   If a prisoner is sentenced to another period of imprisonment for an offence committed, in Queensland or elsewhere, during the period of the prisoner’s parole order, the order is taken to have been automatically cancelled on the date on which the offence occurred.”

The applicant’s parole in relation to the previous sentences was therefore taken to have been automatically cancelled on 1 June 2022.

14. [14]
    Section 211 of the CSA deals with the effect of cancellation of parole.  Section 211 applies to parole that has been cancelled under s 209 because the prisoner was sentenced to another term of imprisonment for an offence committed, in Queensland or elsewhere, during the period of the parole.  The effect of s 211(2)(c) is that the time for which the applicant was released on parole, prior to committing the offences on 1 June 2022, counts as time served under his period of imprisonment.
15. [15]
    These provisions operate so that there were eight days of the earlier sentence that remained to be served when the applicant was sentenced on 6 June 2024.  The sentences imposed on 6 June 2024 could therefore be made cumulative on the earlier sentence.  By impermissibly adding the eight days to the earlier sentences however, the PSC certificate did not accurately record the period and number of days that could be declared as pre-sentence custody.  The applicant’s earlier sentence notionally expired on 24 August 2023 and was immediately followed by time spent by the applicant on remand for the offences for which he was sentenced on 6 June 2024.  The period and days that should therefore have been declared was the period from 25 August 2023 to 5 June 2024 inclusive, a total of 286 days.
16. [16]
    Before her Honour, the prosecutor submitted, by reference to s 160F of the Penalties and Sentences Act 1992, that in setting a parole eligibility date the court must have regard to the total period of imprisonment.  Section 160F provides:

3. “(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.

3. (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.”

17. [17]
    Section 160F(2) contains two defined terms, namely “period of imprisonment” and “term of imprisonment.  Both these terms are defined in s 4 as follows:

3. “period of imprisonment means the unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment, whether –

3. (a)
   ordered to be served concurrently or cumulatively; or

3. (b)
   imposed at the same time or different times;

3. and includes a term of imprisonment.”

“[T]erm of imprisonment” is relevantly defined to mean the duration of imprisonment imposed for a single offence.

18. [18]
    The issue which arises in the present application is what constitutes the “unbroken duration of imprisonment that [the applicant] has to serve for two or more terms of imprisonment.”  Before the sentencing judge, the prosecutor, by reference to s 160F of the Penalties and Sentences Act, submitted that the total period of imprisonment was six years, consisting of the previous sentence of two and a half years and the head sentence on Count 1 of three and a half years.  This was not correct as the eight days (1 to 8 June 2022) broke the period of imprisonment the applicant was serving for the earlier offences.  In the result, the period of imprisonment commenced on 9 June 2022.
19. [19]
    The time the applicant had served under the previous sentence is however, a relevant consideration for this Court in re-exercising the sentencing discretion.  While it may be accepted that the time an offender has served in custody under a previous sentence is not generally treated in a like manner to pre-sentence custody on remand, whether that is formally declarable or not,^[1] it remains a relevant consideration.  In that respect, for the previous sentences, 214 days had been declared for the period 25 February 2021 to 26 September 2021, the applicant had spent 81 days serving the previous sentence prior to being released on parole and had spent time in the community serving the previous sentence for 167 days.  This is all in addition to the 450 days the applicant spent in custody following his arrest on 9 June 2022.
20. [20]
    In relation to re-exercising the sentencing discretion, the following matters are relevant.  As to the circumstances of the offending, the applicant approached the complainant, his ex-partner, on a street in Cairns in the early hours of 1 June 2022.  He knocked her to the ground and squeezed her throat, applying significant pressure (Count 1); forcibly pulled her tongue causing lacerations (Count 2); punched her to the mouth causing bleeding (Count 3); and struck her back and shoulder with a timber paling (Count 4).  At the time, a protection order was in place prohibiting him from contacting or approaching the complainant (Count 5).
21. [21]
    The applicant was 39 years of age at the time he committed the offences on 1 June 2022 and 41 at the date of sentence.  He has a significant criminal history.  His criminal history includes sexual offences, including maintaining an unlawful relationship with a child for which he received a head sentence of four years’ imprisonment imposed on 31 October 2011.  On 1 February 2013 he was sentenced to eight years imprisonment for rape (along with lesser concurrent sentences for wounding and assault occasioning bodily harm).  Those offences were committed while the applicant was subject to a suspended sentence.
22. [22]
    The applicant appropriately does not seek to challenge the head sentence of three and a half years imposed in relation to Count 1.
23. [23]
    His pleas of guilty may be treated as timely.
24. [24]
    In exercising the sentencing discretion afresh, it is apparent that when regard is had to the correct period of imprisonment, the applicant has already served more than 50% of this period.  When consideration is also given to the time the applicant has served under the previous sentences, the parole eligibility date should be set as at the date of the publication of these reasons, 15 November 2024.  The period of imprisonment for the purpose of s 160F of the Penalties and Sentences Act is the period that commences on 9 June 2022, includes the eight days which the applicant became liable to serve on the cancellation of his parole for the earlier sentences and also includes the balance of the head sentence of three years and six months, less 286 days that should be the subject of the pre-sentence custody declaration for the time spent on remand for the subject offences that was not attributable to serving any sentence.  In round terms, that makes the period of imprisonment four years and eight months.

Disposition

3. 1.
   The application for leave to appeal against sentence is granted.

3. 2.
   The appeal is allowed but only to the extent of varying the orders made on 6 June 2024 as follows:

3. a.
   Substitute that part of the pre-sentence custody declaration that declares the part of the pre-sentence custody to be imprisonment already served under the sentences to be “the period from 25 August 2023 until 5 June 2024 inclusive, a total of 286 days” in lieu of “the period from 2 September 2023 until 5 June 2024 inclusive, a total of 278 days”.

3. b.
   Substitute “15 November 2024” for “9 June 2025” as the date the applicant is eligible for parole.