R v Gopurenko[2017] QDC 107

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   In this matter, the applicant applies for extension of time for bringing an application to re-open the sentence imposed on him by this Court on 29 April 2014.

2. [2]
   This application was filed on 18 November 2016 and therefore well outside the 28 day period provided in s 188(5)(b)(i) of the Penalties and Sentences Act 1992 (“PSA”) for making such an application, subject to any further time that may be allowed by the court on such application and pursuant to s 188(5)(b)(ii).

3. [3]
   As will be noted, the circumstances in explanation of such a late application are intimately entwined with the contentions as to the merits of the application, which themselves raise quite an unusual situation. That includes the fact that this application is made notwithstanding an unsuccessful application by the applicant, to the Court of Appeal, for leave to appeal his sentence. The judgment of that Court was given on 10 October 2014.

4. [4]
   In essence, the explanation for the delay in making this application is that, notwithstanding that this was an issue that:

1. (a)
   was the subject of some discussion in the sentencing proceedings on 23 April 2014; and

2. (b)
   raised by the applicant in the Court of Appeal;

the applicant now has correspondence from the Adult Parole Board of Victoria, which identifies an outstanding liability he has, or may have, in respect of a sentence imposed in that State and prior to the sentence, which is the subject of this application, being imposed in Queensland. 

5. [5]
   First and by letter dated 20 July 2016 and under the hand of the Chief Administrative Officer of the Adult Parole Board of Victoria and after setting out an understanding of the applicant’s position in respect of the sentence that he is now serving in Queensland, it is stated:

“As is the practice of the board, when you leave Victoria whilst on parole in breach of your parole order (whether to face charges or otherwise), your parole must be cancelled.  This occurred on 3 December 2014.  As it currently stands, your parole is cancelled and there is a warrant for your arrest.  Should you return to Victoria, you will be taken into custody.  As is required by all Victorian prisoners, you will however be able to make a parole application.  Once all relevant matters are addressed, your case for Victorian re-parole can be considered.”

6. [6]
   Further and apart from filing this application, the applicant’s solicitors have sought, by way of correspondence, some further clarification as to the applicant’s position and attached to an affidavit by Mr Bouchier, filed on 16 January 2017, is a copy of an email sent on 23 December 2016, by a Ms Bailey and apparently on behalf of the Adult Parole Board of Victoria, which indicates the following response to the applicant’s solicitors email of 16 December 2016:

“In your email you ask the length of time your client, Mr Gopurenko, will be required to serve under his Victorian sentence once he is taken back into custody in Victoria.

As you state, Mr Gopurenko was paroled on 21 March 2013 and his sentence would have been completed on 19 February 2015.  His parole was cancelled on 3 December 2014 as he was unable to complete his parole due to being in custody in Queensland after being extradited to there at the commencement of his parole.  His parole was not cancelled immediately, but was later after a review by the Adult Parole Board of his case. 

To make a determination on the length of time Mr Gopurenko will be required to complete on his Victorian sentence, the board will need to hold a Time to Count meeting.  This cannot occur until he is back in Victorian custody and a complete report can be generated of the his full circumstances of his extradition and imprisonment.  Given this, Stuart Ward’s (Chief Administration Officer) statement that as it currently stands your client’s sentence in Victoria remains at 700 days.  How much this is served as parole would need to be determined again after your client has returned to Victoria, Community Corrections staff have completed the required reports are considered by the board.” (Errors as in original).

7. [7]
   Noting that the applicant was born on 6 November 1978 and was therefore aged 31 when he relevantly offended and is now aged 39, the following chronology of events can be observed:

1. (a)
   Between 27/12/08 and 23/2/09, he committed two fraud offences (Queensland).

2. (b)
   Between 19/2/09 and 4/3/09, he committed three armed robbery offences (Queensland).

3. (c)
   On 19/3/09, he committed an armed robbery of a bank (Victoria).

4. (d)
   On 23/3/09, he was arrested in Victoria.

5. (e)
   On 23/10/09, he was sentenced in Victoria to 5 years and 11 months with non-parole period of 4 years and 204 days declared pre-sentence custody (including for other fraud and dishonesty offences committed in Victoria in 2008 and prior to the Queensland offences).

6. (f)
   On 23/3/13, he was released from custody in Victoria (to parole) but immediately extradited to Queensland.

7. (g)
   On 29/4/14, he was sentenced in Queensland to 6 years imprisonment with parole eligibility date fixed at 21/3/15, after declaring 403 days of pre-sentence custody (21/3/13 – 28/4/14).

8. (h)
   On 10/10/14, the Court of Appeal gave judgment (Queensland).

The Application

8. [8]
   The applicant’s contention as to the basis for re-opening the sentence is to contend, pursuant to s 188(1)(c) of the PSA, that this Court has imposed a sentence decided on a clear factual error of substance. In written submissions, that error was contended to be that the Court:

“…had sentenced on the basis that the [Victorian] parole would be served concurrently with his remand time in Queensland.  Indeed the Court of Appeal noted that the sentence was imposed on the basis that the ‘time served under the Queensland sentence would amount to time served under the Victorian sentence.’”

The later observation is in reference to the following passage in the judgment of the Court of Appeal in R v Gopurenko [2014] QCA 255, which follows the stated conclusion that the sentence that had been imposed was not manifestly excessive:

“[27] The applicant informed the Court that he had been unable to obtain confirmation from the Victorian parole authorities that the time he had served under the Queensland sentence would count toward service of the outstanding balance of his Victorian sentence which he was serving on parole. It therefore should be made clear that the Queensland sentence was imposed upon the basis that time served under the Queensland sentence would amount to time served under the Victorian sentence. There was no challenge to that proposition at the sentence hearing. This Court has no evidence which suggest that it is not correct. Accordingly, the Court necessarily proceeds on the same basis.”

9. [9]
   Particularly in the context of the review of comparable cases conducted by the Court of Appeal, this observation should not be taken as an indication that any sentence greater than 6 years, imposed for the Queensland sentences, would be manifestly excessive, or that such would be the view if the basis upon which the sentence was imposed was not correct. Rather, the observation seems to be directed at noting that both the imposition of sentence at first instance and the consideration of the matter on appeal, had occurred without resolution of the applicant’s concern as to the accuracy of that assumption.

10. [10]
    As far as the imposition of sentence at first instance was concerned, it can be noted that the assumption:

1. (a)
   was the common submission of the parties;^[1] and

2. (b)
   may be seen as implicit in the observation made after the imposition of sentence and as to the overall effect of the Queensland sentence, in conjunction with the Victorian sentence.

11. [11]
    This application is particularly pursued on the basis that in the sentencing proceedings the parties proceeded upon the basis that the time spent in custody in Queensland would count towards the applicant’s Victorian sentence and therefore be, in effect, a concurrent sentence. On the basis of the information obtained from the Adult Parole Board of Victoria, it was contended that the applicant is actually liable to serve an additional 700 days, so that his total period of imprisonment may be as long as about 11 years and 11 months. And it is contended that the present context for his situation is that he has, to date and despite being released into parole in Victoria and having the parole eligibility date set in Queensland, served in excess of 8 years imprisonment and in excess of 4 years of the Queensland sentence. And further, that he has the prospect of serving the remainder of the Queensland sentence in custody, before having to confront his outstanding liability on his Victorian sentence.

Discussion

12. [12]
    It is clear that in order to establish a “clear factual error of substance”, for the purpose of applying s 188(1)(c) of the PSA, the factual error has to be one made by the sentencing Judge at the time of sentence and it is not sufficient or permissible to find such error having regard to events that have occurred since the sentence was imposed. And that is particularly in respect of any disappointment of anticipation or expectation in the fixing of a parole eligibility date.^[2]  As to an appropriate test, it was observed in R v Davis:^[3]

“Clearly the legislature has now given to the courts a useful tool which will enable both legal and factual errors to be corrected. The power is not to be hedged by unnecessary legal distinctions. I do not think that the term “clear factual error of substance” presents any particular difficulty. The use of the word “clear” suggests that the court should not act unless the error is clearly shown, and the words “of substance” suggest that this exceptional procedure should not be invoked in relation to pettifogging points or relatively minor mistakes. Those words suggest to me the need for something of sufficient importance as to be likely to call for some material alteration of the sentence.”

13. [13]
    Otherwise and for the purpose of invoking s 188(1)(c) of the PSA, it is established that the applicant must demonstrate that this Court, in imposing sentence, has acted on an erroneous factual basis, in some material way.^[4] The factual error must be one that was made by the sentencing judge and it is not sufficient to point to the effect of events that have post-dated the imposition of sentence,^[5] or any misplaced expectation in the imposition of sentence.^[6] The statutorily expressed criteria are to be strictly applied.^[7]

14. [14]
    A problem confronting the applicant is the apparent uncertainty of his position in respect of his Victorian sentence. Although the correspondence from the Adult Parole Board of Victoria makes reference to a potential liability of 700 days, there is also reference to a “time to count meeting” and the contention that the applicant’s parole was not cancelled until 3 December 2014. On this application reference was made to some provisions of the Corrections Act 1986 (Vic) and which appear to relate to various assertions made on behalf of that Board.  The following may be noted:

“77  Cancellation of parole

1. (1)
   Subject to this section, if a prisoner is released on parole the Board may, at any time before the end of the parole period, by order cancel the parole.

77A   Revocation of cancellation

1. (1)
   If the Board has cancelled a prisoner's parole it may at any time by a further order revoke the cancellation.
2. (2)
   The Board may by order revoke the cancellation of a prisoner's parole under section 77(6) if it is satisfied that exceptional circumstances exist.
3. (3)
   A parole order revives on the making of the order revoking the cancellation of the parole.
4. (4)
   The Board must not make an order revoking an order cancelling a prisoner's parole if a warrant has been issued under section 77B unless the Board is satisfied that the warrant will not be executed.

77B Return of prisoner to prison on cancellation of parole

1. (1)
   If a prisoner's parole is cancelled or taken to be cancelled, the Board may—

1. (a)
   authorise any police officer, by warrant signed by the Secretary or a member of the Board, to break, enter and search any place where the prisoner is reasonably believed to be and to arrest the prisoner and return the prisoner to prison; or

2. (b)
   whether or not a warrant is issued under paragraph (a), authorise the making of an application to a magistrate for a warrant—

1. (i)
   authorising any police officer to break, enter and search any place where the prisoner is reasonably believed to be and to arrest the prisoner and return the prisoner to prison; or

2. (ii)
   authorising any other officer to arrest the prisoner and return the prisoner to prison.

2. (2)
   If a prisoner's parole is cancelled or taken to be cancelled—

1. (a)
   the original warrant to imprison or other authority for the person's imprisonment is to be regarded as again in force; and

2. (b)
   any period during which the parole order was in force is not to be regarded as time served in respect of the prison sentence unless a direction under section 77C applies.

77C  Power to direct that time on parole is time served

The Board may direct that some or all of the period during which a parole order that is cancelled or taken to be cancelled was in force is to be regarded as time served in respect of the prison sentence.”

15. [15]
    Curiously and on the basis, as stated in the correspondence, that the applicant’s parole was cancelled on 3 December 2014, the abovementioned provisions would lead to a conclusion that it would only be in respect of the period from 3 December 2014 to 19 February 2015 for which the original warrant would be definitively “again in force” and all of the prior period from 29 March 2013 to 2 December 2014, would potentially be subject to a direction under s 77C. Further, s 77A(1) would allow for the prospect of the Board revoking the cancellation of parole, so that s 77B(2) was not then engaged at all.

16. [16]
    However, that position appears to overlook the effect of s 77A and the consequential engagement of s 77B(2), on the basis that the applicant’s parole was taken to be cancelled when he was sentenced to terms of imprisonment in Queensland, on 29 April 2014. On that premise, there would appear to be a period from 29 April 2014 to 19 February 2015 (297 days) in relation to which the original warrant is definitively “again in force” and the period from 23 March 2013 to 28 April 2014 (403 days) remains amenable to a direction pursuant to s 77C. The latter period is the applicant’s remand period and which was declared as time served in respect of the Queensland sentence.

17. [17]
    Whatever may be made of the observations of the Court of Appeal, in these circumstances it is not demonstrated that the time served under the Queensland sentence will not amount, at least in part, to time served under the Victorian sentence, or that the applicant’s Victorian parole (or sentence) would not be effectively served, to some extent, concurrently with the applicant’s remand time in Queensland. As contended by the respondent, it is not for this Court to attempt to predict any decision of the Adult Parole Board of Victoria, including under s 77C.^[8] Further and as also correctly pointed out by the respondent, there is the difficulty in assessment of what weight might have originally been given or might now be given, on any resentencing of the applicant, to the applicant’s potential liability to serve further imprisonment in Victoria, even to the extent that a minimal liability may be discernible.^[9]

18. [18]
    As has been noted above, clear error of substance, calling for some alteration in the sentence, must be found in the basis upon which the Court has imposed sentence and this may be, but will not necessarily be, reflected by the position taken or information provided by the parties for that purpose. Here and as was contended by the respondent upon the hearing of this application and also properly recognised by counsel for the applicant and notwithstanding the already noted observations descriptive of the immediate effect of what had been done within the control of the Queensland Court, there are also indications in the sentencing remarks as to this Court’s recognition that there may, notwithstanding the assumption of the parties, have remained difficulties in relation to the Victorian sentence and the applicant’s release to parole:

1. (a)
   As specifically noted by the respondent and in the context of noting an expected end date of the Victorian sentence as 19 February 2015 and in setting a parole eligibility date under the Queensland sentence at 21 March 2015, it was observed:

“Whilst these circumstances of your release on parole in Victoria generally stand very much to your credit, they relate directly to the assessment of your circumstances in respect of your sentence for only the Victorian offending.  And there can be no doubt that the related Queensland offending adds very substantially to your criminality and therefore the appropriate punishment of you.  In this regard, it is clear that any response by this court, must include a substantial period of imprisonment and such as to require the fixing of the parole eligibility date in order to appropriately deal with the seriousness of your Queensland offending and to achieve the necessary deterrent effect.  Whilst your achievement of a parole order in Victoria will no doubt stand you in good stead in this regard, necessarily you will be required to now also satisfy an appropriate Queensland parole authority, of your suitability for release into the community here and in reference to all of your offending and any issues of rationalisation of any co-existing Victorian parole order, would be a matter for that authority.”^[10]

2. (b)
   Earlier and after noting the expected expiry of the Victorian parole order and sentence on 19 February 2015, it had also been observed:

“Therefore, and assuming compliance with the conditions of that order, it is expected to expire on 19 February 2015.  However and because you were, effectively, immediately arrested in respect of proceedings for your extradition to Queensland upon your release from custody, that order has not effectively been engaged.  In particular it can be noted that the additional and special conditions requiring your assessment for and engagement in programs and treatment for drug or alcohol addiction or for psychiatric or psychological issues and which required, until 20 June 2013, specific engagement in training programs or community service in lieu of any employment, have not therefore been engaged.”^[11] 

3. (c)
   And in the application of the totality principle and the assessment of a notional sentence for all of the criminality in the applicant’s offending, on the artifice that all offences had been dealt with on one occasion in Queensland, it was concluded:

“I am inclined to a view that an appropriate response would likely have been a head sentence of not less than 10 years for the robbery offences alone.  It is therefore appropriate to look to 10 years as an appropriate notional period of imprisonment.  And, of course, had such a period been imposed on you here in Queensland, you would have been required to serve 80% of it or at least 8 years.

However, that is not a necessary incident of your actual situation and the significance of what you have done towards gaining parole in Victoria and the recognition of your guilty pleas to these offences, may be achieved by adopting a more flexible approach in fixing a parole eligibility date in conjunction with a declaration as to pre-sentence custody under s 159A of the Penalties and Sentences Act.”^[12]

Conclusion

19. [19]
    It is clear that potential problems in respect of the applicant’s parole were not entirely overlooked, despite the assumption of the parties and the description of the effect of the Queensland sentence, upon that assumption. And further that the approach was a generous one to the applicant, both in terms of the notional starting point and in implementation as to head sentence and parole eligibility. Accordingly and as it is well recognized that for any given offender there is no single appropriate sentence,^[13] the appropriate conclusion is that no clear error of substance has been demonstrated and there is nothing calling for alteration of the sentence imposed in Queensland. It follows that the identified problems confronting the applicant must be addressed with the relevant authorities in Victoria. The application is dismissed.