R v Hooson[2005] QSC 14

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

FRYBERG J

Indictment No 413 of 2004

THE QUEEN

v.

DANIEL PETER HOOSON

BRISBANE

DATE 09/02/2005

SENTENCE

HIS HONOUR:  This matter came before me two days ago for sentencing.  For reasons which I then gave, I indicated my intention to sentence the prisoner to probation and community service pursuant to section 109 of the Penalties and Sentences Act.  However, a question arose as to whether I had power to make such orders, particularly the probation order, in the circumstances of the case.  The circumstances were that the prisoner is presently serving a period of imprisonment of three months and two weeks imposed upon him on 10 December 2004 in the Magistrates Court. 

There has been some authority to the effect that a sentence of probation cannot be imposed concurrently with a sentence of imprisonment.  The high point of that line of authority is probably the decision of Hughes [1999] 1 Queensland Reports 389 where it was held that a probation order could not operate concurrently with a prison sentence.  More recently, however, the width of that interpretation of that line of authorities has been doubted - see, in particular, the judgment of Jerrard JA in Daly [2004] QCA 385.  It has also been held in the Court of Appeal that a probation order and a suspended sentence of imprisonment may be imposed concurrently - see Sysel v. Dinon [2003] 1 Queensland Reports 212.

The more recent authorities indicate that the proper approach in any mixing of sentences is to consider whether there is an actual impossibility or inconsistency between the sentences being imposed.  Counsels' researches have not disclosed a case where the question of a community based order being imposed upon someone already serving a sentence of imprisonment has been considered.  However, it seems to me that the approach recognised in the more recent cases is one which ought to be applied in these circumstances.

As a participant in the decision in Hughes, I must say that in the light of later experience I think there is a good deal to be said for the approach suggested by Jerrard JA at paragraph [24] of his reasons in Daly.  I therefore propose to make the community service orders which I foreshadowed two days ago. 

It is, however, necessary to give some consideration to the particular requirements of the orders so as to ensure that there is no conflict between them and the prisoner's present status.  The sentence of three months and two weeks will expire on 23 March.  That is some month and a-half from now.  I have proposed imposing a sentence of probation for 18 months and community service to be performed of 60 hours to be performed over 12 months.

It does not seem to me that the effect of either of these orders would be nullified if performance of the requirements of them should be deferred until after the release of the prisoner on his current term of imprisonment.  There is nothing in the requirements which could not be performed or carried out within the remaining 16 and a half months or 10 and a half months respectively.

One area of potential conflict is the requirement for the prisoner to report to an authorised Corrective Services officer under ss 93(1)(b) and 103(1)(b).  Obviously, he cannot report in person while incarcerated.  Uncertainty arises because the prisoner will shortly be eligible for conditional release under s 76 of the Corrective Services Act 2000.

I was told two days ago that in fact the Chief Executive had decided to grant conditional release and that the prisoner would be released today.  That is why I adjourned the sentence until today.  It has now emerged that this information was incorrect.  Section 76 authorises conditional release after a prisoner has served two-thirds of a period of imprisonment.  That will not occur until, at the earliest, the 18th or the 19th of this month.  Not until then could he be eligible within the meaning of sub-s 76(1).

It is common ground between the parties that it is highly likely that upon the effluxion of two-thirds of the period of imprisonment the Chief Executive will make an order.  In other words, as I understand what I have been told from the Bar table, the Chief Executive, in effect, is satisfied of the matters referred to in s 76(3).  There is no suggestion that once the eligibility requirements are complied with there will be anything done other than the making of the order and there is no suggestion that the conditions in the order will include anything which will be inconsistent with the performance by the prisoner of the requirements of the orders which I make today.

It therefore seems to me that as a matter of fact, there is no other potential inconsistency which would require me to refrain from making the orders.

The problem regarding the reporting date arises because of differing views about when the prisoner will become eligible for conditional release.  The period of imprisonment of three months and two weeks is comprised of sentences of three months for breach of an undertaking under the Bail Act and two weeks being part of a period of suspended imprisonment imposed for various offences of dishonesty.  By virtue of s 33 of the Bail Act, those sentences are being served cumulatively.

Two thirds of the period of three months and two weeks expires on 18 or 19 February.  However, the Chief Executive has taken the stance that the provisions of s 76 of the Corrective Services Act 2000 cannot be applied in relation to the 14 days being served for the offences of dishonesty.

The basis for that approach, I was informed, is s 151 of the Penalties and Sentences Act 1992 which provides that if a term of imprisonment is partly suspended, the provisions of an Act that provide for remission of sentence do not apply to the imprisonment that must be served before the order suspending part of the term of imprisonment has effect.  In other words, the Chief Executive is taking the view that the whole of the 14 days must be served.  On that approach the prisoner would not be released until 23rd February. 

I doubt whether that approach is correct.  The provisions of s 76 refer to the prisoner's period of imprisonment.  They do not seem to envisage the consideration of the elements of the period of imprisonment as separate periods to be the subject of separate calculations in the way inherent in the Chief Executive's approach.  More importantly, s 76 does not on its face make provision for remission.  It does not appear to answer the description of being a provision of an act that provides for remission of sentence under s 151 of the Penalties and Sentences Act.

It is true that once conditional release is granted the effect  of the order is that the prisoner is taken to have served his period of imprisonment if (but only if) the order is not cancelled before the date stated in the order for the order's expiry.  In the context, particularly having regard to the terms of s 75 of the Act, I doubt if that is enough to justify interpreting conditional release as remission, whatever practical effect it may have.

Section 151 is a survivor from the days when remission was granted almost as of right.  Under the Corrective Services Act 2000, remission is available only under s 75.  It therefore seems to me that I could impose a requirement that the prisoner report to an authorised Corrective Services officer no later than 20 February 2005. 

However, neither counsel favoured the imposition of such a requirement.  Both argued that not only would that run the risk of being inconsistent with the fact of imprisonment (if my prima facie interpretation of s 76 be wrong) but also the fact that the conditional release order has not yet been made and might yet not be made for some other reason would be another potential obstacle. 

Instead they urged that I impose as a requirement on first reporting that the prisoner report to an authorised Corrective Services officer within two days of his release from serving the period of imprisonment which he is currently serving.

I think that the approach urged by counsel is the prudent one in the circumstances of the case.  Particularly that is so because I have not heard full argument on the question of the proper interpretation of ss 76 and 151.  There has been no contradictor.  I will therefore impose a requirement in that form.

I have already indicated the requirements of the probation order and the corrective services order which I make.  I propose that in each case - that is, in the case of the probation order and the community service order - the reporting requirement be that the prisoner report to an authorised Corrective Services officer at Caloundra within two days of his release from prison in respect of the period of imprisonment which he is currently serving.

I ask you, Mr Hooson, having regard to that change are you still agreeable to the imposition of probation and community service?

PRISONER:  Yes.

HIS HONOUR:  That being so I sentence you to probation for a period of 18 months and to perform 60 hours of community service during the period of the order. 

I make those orders subject to the requirements which I enunciated on Monday as varied by the reporting requirement I have enunciated today.