Kim v Arbuckle
[2009] QDC 267
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- Unreported Judgment
- Kim v Arbuckle[2009] QDC 267
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Kim v Arbuckle[2009] QDC 267
Kim v Arbuckle[2009] QDC 267
[2009] QDC 267
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE ROBIN QC
No 732 of 2009
EDWARD HAHN KIM | Appellant |
and | |
KENNETH WILLIAM ARBUCKLE | Respondent |
BRISBANE
DATE 03/07/2009
ORDER
CATCHWORDS: | Justices Act 1886 s 222 - Penalties and Sentences Act 1992 s 1608(2) - appeal against sentence succeeded when Magistrate failed to explain why a parole eligibility date well beyond the half-way mark was set or to give the parties an opportunity to make submissions about that course - fixing a date for release on parole was not precluded by a declaration of a continuing period of remand custody as time served under a sentence of imprisonment newly pronounced. |
HIS HONOUR: This appeal against sentence under section 222 of the Justices Act 1886 has been brought on by special arrangement early without the Court's standard listing procedures being gone through. It brings some credit on the system that this occurs in consequence of what Ms Litchen noticed on review of this and similar files which are her responsibility. She enlisted the cooperation of Legal Aid in getting the matter brought on early, which is very much in the interests of all concerned.
On the 10th of March 2009 in the Magistrates Court at Brisbane the appellant, whose date of birth is the 7th of April 1990, pleaded guilty to two charges of assault occasioning bodily harm which occurred on the 1st of August 2008. These were instances of repellent, totally unprovoked street violence in the city at night time. Worse, two assaults which occurred during a single fracas, which the appellant and his group appeared anxious to foment, came on top of previous convictions for assaults by him on two other individuals. They were dealt with in the Magistrates Court at Southport. The appellant at the time of the new offences was on parole, having had the advantage of a parole date fixed by the Court at Southport which saw him admitted to parole immediately. There had been 20 days pre-sentence custody.
The appellant had been in custody since the 1st of August 2008 but on different bases. He was serving the original sentence until the 1st of November 2008 and thereafter held in custody on remand. There were 128 days of such remand custody when sentence was pronounced by her Honour. That appears to have been overlooked when the sentence was pronounced. Her Honour had the advantage of common ground being reached at the Bar Table that an appropriate head sentence was 18 months, which in deference to those factors that could be considered favourable to the appellant, namely, his youth and his guilty plea, the legal representatives suggested could be ameliorated by some order leading to release of Mr Kim after six or seven months.
That outcome strikes me as one which would have been appropriate.
When her Honour came to pronounce sentence, however, she seized on the seven months, it would seem, fixing a parole eligibility date seven months after sentence. The consequence of that is that more than eleven months of an 18 months' sentence was ordered to be served in actual custody. To put matters in that regard beyond doubt, although I feel sure it wasn't her intention, a declaration of pre-sentence custody was made.
That gives rise to an interesting issue which is raised at the last minute in addendum submissions from both parties.
The question is whether the Court was obliged to fix a parole eligibility date, which is what was done on the 10th of March 2009, or whether the Court's obligation was to fix a date for release on parole. The latter course has the advantage for an offender, and indeed, for all concerned, of certainty and also spares all concerned the not inconsiderable trouble and cost of an application for parole being prepared, presented and considered.
Section 4 of The Penalties and Sentences Act defines "period of imprisonment" in this way: "Period of imprisonment means the unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment, whether - (a) ordered to be served concurrently or cumulatively; or (b) imposed at the same time or different times; and includes a term of imprisonment."
Section 160B of the Act provides: "Sentence of 3 years or less and not a serious violent offence or sexual offence. (1) This section applies if neither section 160C nor 160D applies. (2) If the offender has had a court ordered parole order cancelled under the Corrective Services Act 2006, section 205 or 209 during the offender's period of imprisonment, the court must fix the date the offender is eligible for parole. (3) If subsection (2) does not apply, the court must fix a date for the offender to be released on parole. (4) If the offender had a current parole eligibility date or current parole release date, a date fixed under subsection (2) or (3) must not be earlier than the current parole eligibility date or current parole release date."
The parties have provided helpful submissions to the Court and, as it happens, both seem to me to have taken a neutral view.
I am of the opinion that there is a "period of imprisonment" for purposes of 160B(2) only if at the time of the days whose status is being considered those days can be identified as a period of imprisonment - which contemplates imprisonment being served in consequence of a Court order that imprisonment be served. I do not think it covers time spent in custody on remand.
The question becomes whether, retrospectively, on a sentence when pre-sentence custody is made the subject of a declaration, a period of imprisonment whose status was unclear then becomes identifiable and must be treated as a period of imprisonment. That strikes me as unfair to an offender given the consequence that all he or she can then expect is the less satisfactory order for a parole eligibility date rather than a fixed date.
It would presumably be open to the sentencing Court to produce the result more favourable to an offender by noting pre-sentence custody but declining to make any declaration in respect of it and reducing and perhaps by the same number of days the duration of a sentence imposed.
There could be circumstances in which it's invidious for a sentencing Court to have to make determinations of this kind. In my opinion, the pre-sentence custody which was "declared" by the Magistrate here does not amount to a period of imprisonment, notwithstanding the factual circumstances of "unbroken duration," et cetera.
So far as the appeal as originally conceived is concerned, the flaw in the sentence identified by both Mr Posner for the appellant and Ms Litchen for the respondent is that a parole eligibility date beyond the half-way mark was fixed with no reasons being given for that unusual course. See what Fraser JA said in Kitson [2008] QCA 86 at paragraph 17. His Honour's approach is effectively summarised by Mr Litchen as follows: "Where the applicant has a claim upon the discretion for an order that he be released after serving less than the head sentence in view of his guilty plea and personal circumstances a parole release date which is significantly beyond the mid point is very unusual (R v Norton [2007] QCA 320 per Douglas JA)."
Fraser JA went on to say at paragraph 18 that (where the "very unusual" happens) it is in the interests of the parties, the public, the victims and the appeal courts that an explanation be provided. His Honour then stated at paragraph 19 that failure to give reasons might amount to appealable error. Further to this, at paragraph 21, Fraser JA also stated that the parties should be heard where the Court is contemplating such a measure.
The foregoing provides a compelling basis for the allowing of this appeal. It is of some interest to me that the common ground in respect of a release date, fixed or otherwise, which has been arrived at on the appeal, namely, the 2nd of August 2009, is less favourable to the appellant than the common ground which apparently failed to attract her Honour's concurrence on the 10th of March last.
There was no necessity for her Honour to fall in with the parties' matching views before her, although I've already indicated they come within the range of a sound sentencing discretion. So, too, and comfortably, does the suggestion which comes from counsel today.
The outcome is that the offending by way of gratuitous street violence on multiple victims while the offender was on parole for a couple of recent instances of similar offending is appropriately treated as serious.
The appeal will be allowed and the sentence of 18 months' imprisonment will be confirmed but with a fixed parole date of the 2nd of August 2009 set.
The declaration of pre-sentence custody which her Honour made ought to be renewed. That's one of 128 days from the 1st of November 2008, concluding on 10th March 2009.
I note that the date of the 2nd of August is the equivalent of parole half-way through the sentence.