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Soanes v Commissioner of Police[2013] QDC 26

Soanes v Commissioner of Police[2013] QDC 26

DISTRICT COURT OF QUEENSLAND

CITATION:

Soanes v Commissioner of Police [2013] QDC 26

PARTIES:

BERNARD ROSS SOANES

(appellant/respondent)

and

COMMISSIONER OF POLICE

(respondent/applicant)

FILE NO/S:

D4/2012, D16/2012

DIVISION:

Appellate jurisdiction

PROCEEDING:

Appeals against sentence

ORIGINATING COURT:

Magistrates Court at Gympie

DELIVERED ON:

22 February 2013

DELIVERED AT:

Maroochydore

HEARING DATE:

4 February 2013

JUDGE:

Long SC DCJ

ORDER:

  1. The order made on the 20 January 2012 whereby the parole release date for the appellant was fixed at 20 January 2012 is set aside; and
  2. The term of 6 months imprisonment imposed on the appellant be wholly suspended for an operational period of 2 years.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appeals by both defendant and complainant - where appellant pleaded guilty to one count of dangerous operation of a motor vehicle – where 6 months imprisonment imposed with immediate parole release – where the appellant had committed the offence whilst on parole - whether Magistrate failed to take into account that the sentence would reactivate a liability to serve the unexpired portion of a period of imprisonment - whether the sentence was excessive - whether the Magistrate should have fixed a parole eligibility date rather than a parole release date – whether the sentence should have been ordered to be served cumulatively - whether sentence was unlawful

Acts Interpretation Act 1954 s 20

Corrective Services Act 2000 s 426

Corrective Services Act 2006 s 4; s 108; s 160; s 200; s 205; s 209; s 210; s 211; s 214; s 215

Justices Act 1886 s 222

Penalties and Sentences Act 1992 s 4; s 9; s 156A; s 159A; s 160

Department of Corrective Services v Fisher, Unreported, District Court Maroochydore, 29/9/10

Jones v Queensland Community Corrections Board and Anor [2001] QSC 30

Kim v Arbuckle[2009] QDC 267

Miller v Dunning [2006] QDC 420

R v Bond [2009] QDC 28

R v Cox; R v Cuffe; R v Morrison [2013] QCA 10

R v Coolwell [2010] QDC 487

R v Dean [2006] QCA 256

R v Kapitano [2012] QCA 288, at [46] – [52]

R v McDougall & Collas [2006] QCA 365

R v Meerdink [2010] QCA 273

R v Pepper and Cornwell [1999] QCA 47

R v Watt [2007] QCA 23

R v Walton ex parte A-G of Queensland [1997] QCA 411

COUNSEL:

G Visini (solicitor) for the appellant/respondent

M Hynes for the respondent/applicant

SOLICITORS:

Power and Cartwright Solicitors for the appellant/respondent

Office of the Director of Public Prosecutions (Queensland) for the respondent/applicant

Introduction

  1. [1]
    On 20 January 2012 the appellant/respondent (“appellant”) was sentenced to a term of six months’ imprisonment with immediate parole release,[1]in respect of an offence of dangerous operation of a motor vehicle, committed on 22 December 2008. He was also dealt with for an offence of failing to comply with the requirements of a restricted drivers licence on the 3rdSeptember 2011, for which he was fined. The appellant was disqualified from holding or obtaining a drivers license for a total period of twelve months but there is no issue raised in this proceeding in respect of these further orders.
  1. [2]
    The appellant appeals against the sentence imposed in respect of the offence of dangerous operation of a motor vehicle, on the grounds that:
  1. (i)
    the sentence is manifestly excessive; and
  1. (ii)
    the acting Magistrate did not take into account that the sentence would “reactivate a parole order.”
  1. [3]
    The appellant’s notice of appeal was filed on 15 February 2012 and therefore within the parameters of s 222 of the Justices Act 1886. However, and subsequently on 22 November 2012, the respondent/applicant (“respondent”) also filed a notice of appeal against this sentence and a notice of application for extension of time for filing that notice of appeal.
  1. [4]
    The basis of that application and appeal was the assertion that the sentence that had been imposed was unlawful. Although the submission was not initially pressed in oral argument at the hearing of this matter, one contention advanced in writing was that illegality arose because of the provisions of s 160C of the Penalties and Sentences Act1992 (“PSA”). The other contention centred on the effect of s 156A of the PSA.

The contentions

  1. [5]
    No issue was taken in respect of an extension being granted, so that the respondent’s appeal be heard and it was common ground between the parties, on the hearing of the appeal, that there had been error in the sentencing of the appellant, in that no-one in the sentencing proceedings and particularly the acting Magistrate, had adverted to the legislative consequences of the sentence that was imposed. There was therefore a failure to have regard to the “totality principle.”[2]The imposition of a sentence that is just and appropriate to all the relevant circumstances, as required by s 9 of the PSA, requires an approach which has proper regard to the effect of any sentence to be imposed.[3]
  1. [6]
    It should be noted that neither party raised any issue as to s 222(2)(c) of the Justices Act1886 (which may have an effect that any appeal against sentence is limited to a ground of either excessiveness or inadequacy of punishment) or as to how this provision is to be interpreted in the light of this court’s obligation to conduct such appeals as a rehearing and to come to an independent conclusion as to the orders under appeal.[4]
  1. [7]
    However and whether or not there may be incidental issues as to the lawfulness of the sentence imposed and what was considered in the sentencing process below, I proceed on the basis that the overall complaint of the appellant is as to excessiveness of punishment and that the complaint of the respondent at least is as to inadequacy of punishment as far any failure to make a cumulative sentencing order under s 156A of the PSA, is concerned.
  1. [8]
    The appellant contended that the imposition of a term of imprisonment with an order for immediate release on parole, was, in any event, manifestly excessive and that the sentence that should have been imposed was one of the same term of imprisonment, wholly suspended.
  1. [9]
    The solicitor for the appellant had submitted for that type of sentence below, whereas the Prosecutor had submitted that a sentence of imprisonment be imposed but that it be either suspended “or, perhaps, an immediate parole.”[5]
  1. [10]
    It can be noted that in his sentencing remarks, the acting Magistrate said:

“I do note those submissions and I am going to impose in respect of the dangerous operation of the vehicle charge a term of imprisonment. However I am going to take action in respect of suspending that.

So, for this charge of dangerous operation, your plea is accepted, a conviction is recorded and you are convicted and sentenced to six months’ imprisonment and I set the parole release date as at today so you will be on immediate parole.”[6]

  1. [11]
    Although it would appear unlikely that the acting Magistrate misunderstood the different nature of a suspended sentence as opposed to an immediate parole release, this passage is an additional concern when considering the issue of inadvertence as to the full consequences of the order made. That issue is dealt with below.
  1. [12]
    The submission made to this court that the selection of an immediate parole release, rather than a suspension of the sentence, made it manifestly excessive, quite apart from consideration of the not adverted to consequences of such an order, should not be accepted. As was the case before the acting Magistrate, the appellant’s solicitor referred to some decisions where orders not involving an immediate parole release were made and not found to be manifestly excessive on appeal for an offence of dangerous operation of a motor vehicle.[7]However those are nothing more than instances of particular exercises of sentencing discretion in the circumstances of individual cases.
  1. [13]
    The selection of an immediate parole release rather than a wholly suspended sentence, for an offender who had significant prior criminal and traffic histories and who committed these offences while on parole, can not be regarded as itself involving any manifest excessiveness of sentence but the reality of the appellant’s complaint is more sophisticated than that.

Relevant considerations

  1. [14]
    The offence occurred on 22 December 2008 and involved a course of driving along roads including the MaryValley Highway, between Imbil and Gympie. The defendant began following another vehicle by tailgating it, flashing his lights and putting on the left indicator. He continued to follow the complainant’s vehicle as he made turns through streets in Imbil and continued to follow closely, flash his lights and operate the left indicator. At a point when the complainant had increased his speed in response to this conduct to 120 kilometres per hour the defendant’s vehicle was swerving from side to side at the rear of the complainant’s vehicle, overtook him and forced the complainant’s vehicle slightly off the road. When the appellant’s vehicle pulled in front of the other, it was slowed to a speed of forty kilometres an hour in a 100 kilometre per hour speed zone. The complainant overtook the other vehicle and attempted to accelerate away whilst attempting to contact police on triple zero. The appellant/respondent drove his vehicle such as to catch up with the complainant’s vehicle and again tailgate that vehicle. He also approximately ten times came beside the complainant’s vehicle and attempted to push him towards the side of the road. Police attended and observed the defendant’s vehicle tailgating the other and observed it to overtake the complainant’s vehicle and cross double white lines at the crest of a hill and accelerate out of sight. Ultimately the appellant’s vehicle was located in a side street and a female was located in the passenger seat but the driver had decamped. Later the defendant returned to the vehicle. However he denied being the driver and told police that his son had driven him to the location after receiving a call from his girlfriend who was the passenger in the vehicle. He declined a formal interview.
  1. [15]
    It was not until 29 September 2011 that the defendant was issued with a notice to appear in respect of the charge. It was not suggested that any conduct of the appellant had resulted in this delay. Although the matter was listed for hearing on 20 January 2012, (with a full brief of evidence being prepared) the appellant entered a guilty plea on that day.
  1. [16]
    At the time that he was sentenced, the appellant had both a significant history of traffic and criminal offending. The most significant aspect was that on 23February 2004 he was sentenced to a total period of seven years’ imprisonment with a recommendation for parole eligibility after serving two years in respect of offences of maiming, disfiguring or disabling with intent.[8]
  1. [17]
    Subsequently, and on 5 February 2012 the appellant committed offences of driving whilst under the influence of liquor and disqualified driving. He was dealt with for those offences on 15 March 2012 and fines and disqualification periods were imposed. However, and as a result of being charged with those offences his parole was suspended for a period of 28 days. He returned to custody on 8February 2012 and was released again on parole, when that suspension expired on 4 March 2012.
  1. [18]
    It is clear from perusal of the record of proceedings below, that the consequences (potential or actual) of the orders in contention and in particular, the order that was made, were not adverted to in the sentencing process. It was conceded by the respondent that this was an error which warranted the setting aside of the order and resentencing of the appellant.
  1. [19]
    Whether approached on the basis that the sentence was manifestly excessive because of the unconsidered consequences of the order that was made, or in consideration of a re-sentencing exercise, it is necessary to discern the consequences of such an order and also the alternative contended for; a wholly suspended sentence.

Discussion

Was a cumulative sentence required?

  1. [20]
    The first consideration is section 156A at the Penalties and Sentences Act1992 (“PSA”). The offence of dangerous operation of the vehicle is one contained in Schedule 1 to the PSA. Therefore any term of imprisonment (which would include a wholly suspended term of imprisonment) would be required to be ordered to be served cumulatively upon any other term of imprisonment that the defendant was then liable to serve.
  1. [21]
    Section 156A(1)(b)(ii) makes that provision referable to offences committed whilst released on post-prison community based release under the Corrective Services Act2000 as well as on parole under the Corrective Services Act 2006 (“CSA”). Although it is not clear from the materials before the Court whether the appellant was released before or after the relevant commencement of the CSA, it is immaterial because the CSAhad clearly commenced before the appellant committed the subject offence. Section 426 of that Act has the effect of deeming any such order made under the 2000 Act and continuing in effect, to be a parole order granted under the 2006 Act.
  1. [22]
    A complication in this case was that whilst the defendant was therefore released on parole, when the offence was committed, he was not charged with, let alone convicted, of that offence until after the previously calculated end date of his sentence and therefore supervision on parole, on 23 February 2011. Further, no action was taken pursuant to s 205 of the CSAby any relevant parole board, prior to that date and the practical consequence was that the defendant was then released from the requirements of supervision on parole.
  1. [23]
    A critical consideration and one which goes to the heart of the submission of the appellant in this case, is that s 209(1) of the CSAwill not apply if a wholly suspended sentence is the order.[9]Therefore there would be no cancellation of the parole order, and therefore, at the time of sentence, no liability to serve any part of the earlier period of imprisonment and therefore nothing upon which to make such an order operate cumulatively, under s 156A of the PSA.

The effect of the immediate parole release order

  1. [24]
    In the first instance, it is necessary to consider the consequences of the order made with immediate release on parole and this hinges on the effect of s 209, s 210 and s 211 of the CSA. Section 209 provides:

“209 Automatic cancellation of order by further imprisonment

  1. (1)
    A prisoner's parole order is automatically cancelled if the prisoner is sentenced to another period of imprisonment for an offence committed, in Queensland or elsewhere, during the period of the order.
  1. (2)
    Subsection (1) applies even if the period of the parole order has expired.
  1. (3)
    However, subsection (1) does not apply if—
  1. (a)
    the prisoner is required to serve the period of imprisonment mentioned in the subsection in default of—
  1. (i)
    paying a fine or another amount required to be paid under a court order; or
  1. (ii)
    making restitution required to be made under a court order; or
  1. (b)
    the period of imprisonment mentioned in the subsection—
  1. (i)
    is required to be served under an intensive correction order; or
  1. (ii)
    is wholly suspended under the Penalties and Sentences Act 1992, part 8; or
  1. (iii)
    is wholly suspended because of an order, under the Drug Court Act 2000, section 20(1)(a), contained in an intensive drug rehabilitation order; or
  1. (iv)
    is required to be served until the court rises.”
  1. [25]
    It can then be noted that s 210 of the CSAallows for the issue of a warrant for the arrest of a prisoner, whose parole order is automatically cancelled under section 209 and subsection (3) provides that:

“(3)When arrested, the prisoner must be taken to a prison to serve the unexpired portion of the prisoner’s period of imprisonment.”

  1. [26]
    Whilst the provisions in s 210(1) and (2) are of a facultative nature, it is of some significance that they are expressed in permissive language and require a decision by an independent body (in the form of a relevant parole board) or person (a Magistrate) before a warrant is issued for a prisoner’s arrest, with the consequences as set out in s 210(3).
  1. [27]
    Accordingly and as appears to have occurred here, consistently with the apparent intent of the order made by the acting Magistrate, no warrant was issued to require the return of the appellant to prison to serve the unexpired portion of any period of imprisonment.
  1. [28]
    The concept of “unexpired portion” is not defined in the legislation but the concept of “period of imprisonment” is, as follows:

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

  1. (a)
    Order to be served concurrently or cumulatively; or
  1. (b)
    Imposed at the same time or different times;

And includes a term of imprisonment.”[10]

It can be further noted that the concept of term of imprisonment is also defined:

“Term of imprisonment means the duration of imprisonment imposed for a single offence and includes –

  1. (a)
    The imprisonment an offender is serving or is liable to serve –
  1. (i)
    for default in payment of a single fine;
  1. (ii)
    for failing to comply with a single order of a court; and
  1. (b)
    for an offender for whom a finite sentence has been imposed, any extension under section under 174B (6) of the offender’s finite term.”[11]
  1. [29]
    Although it is not expressed in terms of providing any definition of the meaning of “unexpired portion” of any period of imprisonment, s 211 of the CSAhas such an effect. This provision operates to exclude that portion of a prisoner’s period of imprisonment remaining after cancellation of a parole order, in specified circumstances and therefore determines that part of a prisoner’s period of imprisonment which has not been served and therefore remains as the unexpired portion of the sentence.[12]Section 211 provides:

“211 Effect of cancellation

  1. (1)
    This section applies if a prisoner's parole order is cancelled—
  1. (a)
    under section 205(2)(a)(i) because the prisoner failed to comply with the parole order; or
  1. (b)
    under section 205(2)(a)(ii) because the prisoner posed a serious risk of harm to someone else; or
  1. (c)
    under section 205(2)(a)(iii) because the prisoner posed an unacceptable risk of committing an offence; or
  1. (d)
    under section 205(2)(a)(iv) because the prisoner was preparing to leave Queensland, other than under a written order granting the prisoner leave to travel interstate or overseas; or
  1. (e)
    under section 205(2)(b) because the parole board received information that, had it been received before the parole order was made, would have resulted in the parole board that made the parole order making a different parole order or not making the parole order; or
  1. (f)
    under section 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 order.
  1. (2)
    The time for which the prisoner was released on parole before one of the following events happens counts as time served under the prisoner's period of imprisonment—
  1. (a)
    the prisoner failed to comply with the parole order as mentioned in subsection (1)(a);
  1. (b)
    the parole order was cancelled for the reason mentioned in subsection (1)(b), (c), (d) or (e);
  1. (c)
    the prisoner committed the offence mentioned in subsection (1)(f).
  1. (3)
    Despite section 206(3)(b), the Queensland board may, by written order, direct that the prisoner serve only part of the unexpired portion of the prisoner's period of imprisonment.
  1. (4)
    A regional board can not make an order mentioned in subsection (3), even if the regional board released the prisoner.”
  1. [30]
    These consequences or effects of s 211 may be seen, when regard is also had to other provisions in the CSAwhich govern the obligations of a prisoner in respect of serving his or her sentence. First s 6(1) provides that (subject to some specified legislative previsions):
  1. (1)
    “A person sentenced to a period of imprisonment, or required by law to be detained for a period, must be detained for the period in a corrective services facility.”

Section 108 then provides a mandatory obligation that a prisoner must be discharged or released on that prisoner’s “release day.” “Release day” is defined so as to include release on conditional release or parole as well as being discharged. Section 200 of the CSArequires that a parole order be conditioned such that the subject prisoner is under supervision until the end of the period of imprisonment and the following provisions of the CSAmust then be noted:

“214 Prisoner released on parole taken to be still serving sentence

A prisoner released on parole is taken to be still serving the sentence imposed on the prisoner.

215  Expiry of parole order

A prisoner is taken to have served the prisoner's period of imprisonment if the prisoner's parole order expires without being cancelled under section 205 or 209.

  1. [31]
    Therefore and without the consequences of s 156A of the PSAbeing brought into effect, the sentence calculation for the defendant recognised, as from 20 January 2012, a liability to serve a total of two years, two months and one day.[13]
  1. [32]
    That period of two years, two months and one day represented the unexpired portion of the appellant’s sentence, as calculated in accordance with s 211 and as effected by the operation of s 209 of the Corrective Services Act. Because of section 209(2) of the CSA,this is the result, despite the fact that apart from the commission of this offence in the parole period, the defendant had otherwise apparently satisfied the requirements of his parole order, such that no other order had been made by a parole board under s 205 and that otherwise, s 211 would have applied to allow the intervening time to count towards serving his sentence.
  1. [33]
    It can be noted that the concept “the period of the parole order”, appears in:
  1. (a)
    Section 209(2) in reference to the application of the effect of an automatic cancelation under ss (1), even if that period has “expired”; and
  1. (b)
    Section 211(1)(f), in defining a situation where a parole order is cancelled for an offence committed during that period and consequently engaging the provisions of section 211(2).

It must necessarily follow that except in a case where some prior action is taken to cancel a prisoner’s parole order, that period is determined by the expected end date of the sentence and the point at which a prisoner’s supervision on parole practically ends.

  1. [34]
    Despite the evident lack of clarity of these provisions, it is not possible to conceive that the legislative intent is to limit the operation of s 209 to circumstances where a relevant conviction is obtained and a prisoner is also sentenced to another period of imprisonment, within the parole period. To do so would be to ignore the obvious intent of s 209(2).
  1. [35]
    Because s 209(1) is directed at the cancellation of what must be regarded as a then existing parole order, this means that despite the introduction of attendant uncertainties, the effect of s 215 of the CSAis that a parole order does not necessarily expire at the end of the parole period, where a scheduled offence has been committed in that period. In other words, in such circumstances the expiry of the period of the parole order may not coincide with the expiry of the parole order.
  1. [36]
    Otherwise and as noted in R v Coolwell,[14]anomalies might arise where relevant offences remain undetected before the end of the parole period and more particularly where conviction and sentencing for such an offence is delayed until after the end of that period.
  1. [37]
    In this respect there may be an analogy drawn with the position of an offender who is convicted of an offence that has occurred well in the past. Despite any intervening legislative changes and subject to s 11 of the Criminal Code, the position as recognised by s 20 of the Acts interpretation Act 1954, is that any accrued liability under the laws existing at the time of the commission of the offence, is preserved and later brought into effect by any subsequent conviction.

Is s 160C of the Penalties and Sentences Act applicable?

  1. [38]
    Originally a basis of the prosecution appeal was that the order made was unlawful in that a parole release date was set rather than a parole eligibility date. That contention depended upon a conclusion that the appellant’s period of imprisonment, when he was sentenced for the subject offence, exceeded three years. If that analysis is correct, then s 160C of the PSAapplies to require the fixing of a parole eligibility date and the fixing of the immediate parole release date was unlawful. The obvious result would be the prospect of the appellant’s return to custody, until a parole board again decided to allow release on parole.
  1. [39]
    However this submission was not, initially, pursued at the hearing of the appeal, having regard to the decisions in R v Bond[15]and Coolwell v Commissioner of the Queensland Police Service.[16]The appellant did not seek to challenge this position and was prepared to accept the respondent’s position in respect of these decisions, for the evident reason that this position was the least disadvantageous for him and his main submission was that the appropriate sentence was a wholly suspended one and that these issues further became irrelevant upon the imposition of such a sentence.
  1. [40]
    However and particularly if called upon to re-sentence the appellant, this court must attempt some assessment of at least the potential legal consequences of the competing types of sentence.
  1. [41]
    A difficulty with the position adopted in reference to these decisions, is that although the concept of “period of imprisonment” also appears in s 160B(2), neither of the decisions was in fact concerned with the effect of s 160C of the PSA. Moreover, and in each of those decisions, it is specifically noted that prior to the imposition of the sentence in issue, each prisoner had actually completed serving his previously imposed period of imprisonment, so that there was no issue as to calculating any unbroken period of imprisonment, because there remained no liability in respect of any prior sentence.[17]
  1. [42]
    Of the other decisions referred to in Coolwell,[18]nothing needs to be added in relation to Kim v Arbuckle.[19]However and in respect of Department of Corrective Services v Fisher,[20]the conclusion that the parole order had expired before automatic cancellation as a result of the imposition of a further sentence of imprisonment was expressed as “the preferable approach,”[21]in somewhat complicated circumstances. This was where that offender had been sentenced to two months imprisonment on 1 April 2010, with a parole release date fixed at 10 May 2010 and then sentenced in respect of offences committed on 27 May 2010:

  • On 1 June 2010, to 6 months imprisonment with a parole eligibility date set at 27 August 2010; and

  • On the 23 July 2010 to two and a half years imprisonment with a parole eligibility date also set at 27 August 2010.

The issue was as to whether by the order made on the 1 June 2010, the court ordered parole order made on the 1 April 2010 had been cancelled pursuant to s 209 of the CSA and therefore as to whether the situation in respect of his parole eligibility was governed by s 160B(2). That situation was factually complicated by the situation that the only remaining liability, if s 209 had applied, would have been in respect of the period from 27 to 31 May 2010 and this offender had actually been in custody for that period, although that was because of arrest in respect of the offences committed on 27 May 2010 and this period was declared, under s 159A of the PSA, as time served in respect of the sentence imposed on the 1 June 2010. In these circumstances, it would appear that no argument was pressed that there remained any part of the sentence of the 1 April 2010 to be served after the 31 May 2010 and accordingly it was concluded that “on 1stJune 2010, his period of imprisonment resulting from the order of the Magistrates Court on the 1stof April 2010 had been served.”[22]

  1. [43]
    In written submissions, the respondent had referred to the decisions in Jones v Queensland Community Corrections Board and Anor[23], R v Pepper and Cornwell[24]and R v Walton ex parte A-G of Queensland[25], to note the emphasis put upon understanding that the definition of “period of imprisonment” is concerned with ongoing liability to serve imprisonment.
  1. [44]
    The issues considered in those earlier cases necessarily arose in different factual and legislative contexts. For instance, those cases were decided before the introduction of the Corrective Services Act 2006 and therefore before the introduction of the concept that, apart from the situations in which s 211 applies, time spent on parole counts towards expiry or serving of a period of imprisonment. However, it was in each instance, the same definition of “period of imprisonment” under consideration and the settled position was that there was such an unbroken period when considering any sentence to be imposed where there is a concurrent liability to serve the unserved portion of a period of imprisonment, even after release such as on parole. As has been set out above, that position has not changed under the CSA, except that the period of concurrent liability is now likely, in many instances, to be a shorter period, having regard to the effect of s 211.
  1. [45]
    The notion of some concurrent liability to serve imprisonment is also evident in s 156A(2) of the PSA.In appropriate circumstances these provisions will be conjointly engaged.  
  1. [46]
    It was the respondent’s contention that the outcome of this appeal should be that the order made below should only be varied by being required to be served as a cumulative sentence but that otherwise the immediate parole release order could remain, with an expected effect that the appellant would continue to serve his sentences, on parole. Although, it was also the contention of the respondent that the appellant remained potentially liable to action by a relevant parole board, under s 205 of the CSA. That submission as to the outcome of the appeal was premised on the proposition that there was not an unbroken period of imprisonment here, because of the facts that the end date of the prior sentence had passed on 23 February 2011 and the interval when the appellant was not in any practical way subject to any of the requirements of his sentence, before he was convicted of the offence of dangerous operation of a vehicle, on 20 January 2012.
  1. [47]
    However I am not convinced that this is the correct analysis. First it can be observed that in R v Coolwell, Rafter SC DCJ noted the problem which arises, as it does in this case and may arise for a number of reasons, of prosecution and/or conviction of a scheduled offence after the previously calculated end date of a period of imprisonment, which otherwise served to define the parole period. Because of the express legislative effect of s 209(2) of the CSA, His Honour described that calculated date, as in a sense a notional expiration date.[26]Another way of looking at the situation is that once a scheduled offence is committed in the period of the parole order, a liability to serve the then unexpired portion of the period of imprisonment arises, which liability is contingent on the fact of conviction of that offence, even if that occurs after the end of the period of the parole order.
  1. [48]
    In that sense and because of that contingent liability and if the contingency is effected, there is no unbroken liability to serve a period of imprisonment. The nexus is maintained because, when engaged, s 156A requires that any additional term of imprisonment be served “cumulatively with any other term of imprisonment that the offender is liable to serve” and s 210(3) of the CSAhas the effect of the offender being “taken to prison to serve the unexpired portion of the prisoner’s period of imprisonment”. In this sense, s 209 of the CSAdoes not operate, in such circumstances, to create some new and separate liability to serve the previously unserved portion of any prior period of imprisonment.
  1. [49]
    If an order for imprisonment of a kind which engages s 209 of the CSA is made, it is necessarily an order which would also engage s 156A of the PSA. Therefore what is required is an order that the relevant terms of imprisonment be required to be served cumulatively. In this case that would necessitate an order that the period of six months’ imprisonment imposed on 20 January 2012 be served cumulatively with the terms of imprisonment imposed on 23 February 2004.[27]Accordingly, the total period of imprisonment is then to be calculated as seven years and six months, with the necessary consequence that it is then possible to calculate the unexpired or unserved portion of that sentence and therefore any further liability under all of those terms of imprisonment, which then constitute the period of imprisonment.
  1. [50]
    Further, it is, in my view, at least doubtful that pursuant to s 205 of the CSA, a parole board has any power to make an order cancelling a parole order after the end of the parole period. In this regard it is particularly pertinent that there is no provision like s 209(2) of the CSApreserving that position or power. Further it would tend to undermine the effect of s 209(3) if there remained a power for a parole board to nevertheless cancel a parole order and thereby engage s 211(1)(a), which power if it existed might be exercised even after a court had dealt with the matter and decided that an order of the type mentioned in s 209(3) was appropriate and thereby not engaging the automatic consequences of s 209 of the CSA.

Conclusions

  1. [51]
    In respect of this matter, it can therefore be concluded that:
  1. (a)
    The orders made on 20 January 2012  were not lawfully imposed. Section 156A of the Penalties and Sentences Act required the term of imprisonment be imposed cumulatively upon any other term of imprisonment the appellant was liable to serve and s 209 of the CSAwas engaged by the form of order made, to thereby effect the liability to serve the unexpired portion of the sentences imposed on 23 February 2004. Therefore, an order accumulating these terms of imprisonment was required but was not made; and
  1. (b)
    Because the period of imprisonment thereby engaged was seven years and six months (rather than the unexpired portion of the earlier sentence plus six months: that is two years, eight months and one day) s 160C of the PSA also applied, so as to preclude the fixing of the parole release date, as opposed to fixing a new parole eligibility date in respect of the period of imprisonment.
  1. [52]
    Not only were these considerations not adverted to below, these conclusions mean that the order of the acting Magistrate must be rectified and this court must now decide what order should be made, in place of that which was made on 20 January 2012.
  1. [53]
    One factor to note is that a consequence of the order made on 20 January 2012 is that when the appellant was subsequently further charged with offences of driving whilst over the high alcohol limit and disqualified driving, his parole was suspended. Accordingly he actually served a further 28 days of his period of imprisonment, between 8 February 2012 and 4 March 2012. When he was sentenced in respect of those offences on 15 March 2012 he was fined. Accordingly there is no scope for the application of s 209 of the Corrective Services Actto that offending and no order has been made under s 205 of the Corrective Services Actcancelling the parole order resulting from the orders made on 20 January 2012. Accordingly and there being no other known offence committed by the appellant, the balance of the period spent on parole from 20 January 2012 to date, would be presently counted as time served in respect of the appellant’s period of imprisonment.
  1. [54]
    Further and apart from this driving-related offending, which occurred in December 2008 and again in February 2012 and other driving-related offending, as disclosed in the appellant’s traffic history and all occurring between 4 August 2008 and 5 February 2012, there is no other known offending.
  1. [55]
    Despite some concerning features of the December 2008 offending, a particularly significant factor to be taken into account is the very considerable delay in dealing with this matter. This was a situation where the offending was known to investigating police, when it occurred, yet it was not until 29 September 2011 that the appellant was given a notice to appear in respect of any charge.[28]By then, not only had the prospect of such action been hanging over his head for a considerable period of time, but his circumstances had markedly changed in that he had, in a practical sense, completed his period of parole and been released from the practical consequences of that parole order over seven months earlier.[29]
  1. [56]
    The acting Magistrate was also informed that the appellant was forty-six years of age and had been in a stable relationship for some three years and operated his own earthmoving business, an industry he had worked in for some twenty two years. He has eight children but only two of them were under the age of 17. They were aged eleven and nine, respectively and living at Childers. The appellant had then only recently been having contact with them. Otherwise emphasis was put upon the admittedly not early guilty plea and the delay in prosecution of the matter.
  1. [57]
    It appears palpably clear that, in these circumstances and notwithstanding the other concerning aspects of the appellant’s offending, the acting Magistrate intended to impose a sentence that did not have the effect of the appellant being returned to custody and that was, in my view, an appropriate approach.
  1. [58]
    Such an approach might have been achieved by the imposition of a wholly suspended sentence of imprisonment. The consequence then is that s 209 of the Corrective Services Actis not thereby engaged and therefore there is no existing term of imprisonment which the appellant would be liable to serve, so nothing upon which to make that suspended term of imprisonment cumulative.
  1. [59]
    That outcome has effect, under s 225(4) of the Justices Act, as if it had been made by the Acting Magistrate on 20 January 2012 and therefore the events which have transpired between then and now, have limited significance to that outcome.

Orders

  1. [60]
    Accordingly, it is appropriate to allow the appellant’s appeal but whilst granting an extension of time for the filing of the respondent’s appeal to 22 November 2012, to dismiss that appeal and the orders are that:
  1. The order made in the Magistrates Court at Gympie on 20 January 2012, whereby the parole release date for the appellant was fixed at 20 January 2012, is set aside; and
  1. In lieu thereof, it is ordered that the term of six months’ imprisonment imposed on the appellant in respect of the offence of dangerous operation of a vehicle on 22 December 2008, be wholly suspended for an operational period of 2 years.
  1. [61]
    It was accepted by the parties that no costs orders may be made.[30]

Footnotes

[1] That is his parole release date was fixed as the day of sentence on 20 January 2012.

[2]E.g. see R v Kapitano [2012] QCA 288, at [46] – [52].

[3]R v McDougall & Collas [2006] QCA 365 at [15]-[18]; and R v Meerdink [2010] QCA 273 at [33]–[37].

[4]E.g. see Rowe v Kemper (2008) QCA 175 at [5] and Mbuzi v Torcetti (2008) QCA 231 at [17}.

[5]See transcript 1-7. l 30

[6]See decision p 3.ll 10-27

[7]R v Watt [2007] QCA 23, R v Dean [2006] QCA 256 and Miller v Dunning [2006] QDC 420.

[8]He was sentenced to concurrent terms of seven years and three years imprisonment, in respect of separate offences.

[9]See s 209(3)(b)(ii) CSA, as set out in paragraph [22], below.

[10]See s 4 and the dictionary in schedule to the CSA and the definition in s 4 of the PSA.

[11]See s 4 and the dictionary in schedule to the CSA and the definition in s 4 of the PSA.

[12]It also therefore, in the statutory context, has the effect of allowing the time served on parole prior to any of the specified events to count towards serving of or expiration of the sentence: see paragraph [28] below.

[13]See attachment to the appellant’s original outline of submissions. Although it is not clear how the expected end date of that period of imprisonment was calculated as 24 March 2014.

[14][2010] QDC 487, at [26].

[15][2009] QDC 28

[16][2010] QDC 487

[17]In R v Coolwell the point was also made that the provision in issue in these cases (ie s 160B(2)) was only engaged when an “offender has had a court ordered parole order cancelled.” Although the concept of “a court ordered parole order” is not generally defined for the PSA, it is defined for s 160G (which is a provision that must necessarily be read with s 160B) by adopting the definition in the CSA, which effectively means an order issued in accordance with a parole release date fixed by a court under s 160G of the PSA. That’s to be contrasted with release on parole after a court issues a parole eligibility date.

[18][2010] QDC 487 at [24] & [25]

[19]   [2009] QDC 267

[20]Unreported, District Court Maroochydore, 29/9/10

[21]Ibid at p 1-5. l 40

[22]ibid at p 1-5. l 40

[23][2001] QSC 30.

[24][1999] QCA 47.

[25][1997] QCA 411.

[26][2010] QDC 487 at [29]

[27]cf s 32C of the Acts Interpretation Act 1954, which allows the singular to be read as including the plural and vice versa.

[28]As has been noted, this can not be attributed to the appellant and the only explanation appeared to be the time taken by investigators in locating and obtaining a version from the appellant’s son in denial of having dropped the appellant at the car, after the arrest.

[29]As to the potentially mitigatory effects of delay in such circumstances, see: R v Cox; R v Cuffe; R v Morrison [2013] QCA 10 at [100] – [102].

[30]See s 232(4)(a) of the Justices Act 1886.

Close

Editorial Notes

  • Published Case Name:

    Soanes v Commissioner of Police

  • Shortened Case Name:

    Soanes v Commissioner of Police

  • MNC:

    [2013] QDC 26

  • Court:

    QDC

  • Judge(s):

    Long SC DCJ

  • Date:

    22 Feb 2013

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Attorney-General v Walton [1997] QCA 411
2 citations
Jump To
Cite 1 - [1997] QCA 411
Cite 2 - [1997] QCA 411
Coolwell v Commissioner of the Queensland Police Service [2010] QDC 487
5 citations
Jump To
Cite 1 - [2010] QDC 487
Cite 2 - [2010] QDC 487
Cite 3 - [2010] QDC 487
Cite 4 - [2010] QDC 487
Cite 5 - [2010] QDC 487
Jones v Queensland Community Corrections Board [2001] QSC 30
2 citations
Jump To
Cite 1 - [2001] QSC 30
Cite 2 - [2001] QSC 30
Kim v Arbuckle [2009] QDC 267
2 citations
Jump To
Cite 1 - [2009] QDC 267
Cite 2 - [2009] QDC 267
Mbuzi v Torcetti [2008] QCA 231
1 citation
Jump To
Cite 1 - [2008] QCA 231
Miller v Dunning [2006] QDC 420
2 citations
Jump To
Cite 1 - [2006] QDC 420
Cite 2 - [2006] QDC 420
R v Bond [2009] QDC 28
2 citations
Jump To
Cite 1 - [2009] QDC 28
Cite 2 - [2009] QDC 28
R v Cox [2013] QCA 10
2 citations
Jump To
Cite 1 - [2013] QCA 10
Cite 2 - [2013] QCA 10
R v Dean [2006] QCA 256
2 citations
Jump To
Cite 1 - [2006] QCA 256
Cite 2 - [2006] QCA 256
R v Kapitano [2012] QCA 288
2 citations
Jump To
Cite 1 - [2012] QCA 288
Cite 2 - [2012] QCA 288
R v McDougall[2007] 2 Qd R 87; [2006] QCA 365
2 citations
Jump To
Cite 1 - [2006] QCA 365
Cite 2 - [2006] QCA 365
R v Meerdink [2010] QCA 273
2 citations
Jump To
Cite 1 - [2010] QCA 273
Cite 2 - [2010] QCA 273
R v Pepper and Cornwell [1999] QCA 47
2 citations
Jump To
Cite 1 - [1999] QCA 47
Cite 2 - [1999] QCA 47
R v Watt [2007] QCA 23
2 citations
Jump To
Cite 1 - [2007] QCA 23
Cite 2 - [2007] QCA 23
Rowe v Kemper[2009] 1 Qd R 247; [2008] QCA 175
1 citation
Jump To
Cite 1 - [2008] QCA 175

Cases Citing

Case NameFull CitationFrequency
R v Smith[2015] 1 Qd R 323; [2013] QCA 3971 citation
Wiggins v Commissioner of Queensland Police [2013] QDC 2861 citation
1

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