The issue in this case was whether the sentencing judge failed to comply with the requirement in s 160F Penalties and Sentences Act 1992 that the parole date to be fixed by the court must be a date relating to the offender’s “period of imprisonment” not just a particular term of imprisonment. At the time of sentencing the applicant was already serving a term of imprisonment for armed robbery. By majority, the court found that, in fixing the parole eligibility date by reference only to the sentences she was imposing and without regard to the term of imprisonment the applicant was already serving, the sentencing judge had failed to comply with s 160F.
Fraser JA and Lyons SJA and Boddice J
3 April 2020
The applicant pleaded guilty in the District Court to two counts of rape and five counts of indecent treatment of his daughter. . The subject offending was described as “shocking” by Fraser JA and “abhorrent” by Boddice J. , . The applicant was sentenced to concurrent sentences of nine years’ imprisonment for one count of rape, five years’ imprisonment for the other count of rape, and periods of three or four years’ imprisonment for the five indecent treatment counts. It was ordered that the sentences imposed were also to be served concurrently with an existing sentence of four years for armed robbery- a prior unrelated offence. . The issue was whether the sentencing judge had had due regard to that period of imprisonment which was already in operation. Upon entering his plea and sentence, the applicant was on parole. . The applicant was still serving the sentence for armed robbery at the time the current sentences were imposed. .
Matters of totality
The totality principle requires that, as an aspect of the discretion reposed in sentencing judges, regard is to be had as to whether the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences: see R v Symss  QCA 17 at . In Postiglione v The Queen (1997) 189 CLR 295, the High Court explained that the principle applies to ensure that a sentence is not “crushing”.
Section 160F Penalties and Sentences Act 1992
Section 160F Penalties and Sentences Act 1992 provides:
“160 Significance of an offender’s period of imprisonment
(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.
(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.” (statutory notes omitted)
The sentencing judge took the approach that since the subject offending occurred before the previous sentence was imposed, that offending did not breach the applicant’s parole. The parole eligibility date under the previous sentence was automatically negated when the sentencing judge fixed a later parole eligibility date: see s 160E(2) Penalties and Sentences Act 1992. .
The sentencing remarks and the court’s analysis
At the sentencing hearing, citing R v BBP  QCA 114, the Crown recommended a range of between eight to nine years, moderated to “around seven and a half to eight years” to make allowance for the total period of imprisonment and the overlap with the existing sentence. Her Honour queried why “a period of parole in the community that punctuates periods of imprisonment ought to be part of the calculation in determining the total appropriate sentence”; further noting that “that effectively then would be to give him credit for the time that he served – the whole time that he served in custody in relation to a totally different set of offending”. .
On appeal, the majority took the view that, the sentencing remarks as a whole suggested that the sentencing judge did not consider the entire period of imprisonment including the four year term which the applicant was currently serving for the offence of armed robbery in fixing the parole eligibility date. , . That is contrary to s 160F of the Penalties and Sentences Act 1992. Justice Lyons further identified an error in that matters of totality were not taken into consideration in setting the parole eligibility date observing that “to require half of the sentence of nine years, being a period of four and a-half years, to be served on top of a sentence which he had already served either in custody or on parole of two years and three months on a four year sentence in circumstances where he had not breached his parole is not a sentence which is redolent of totality considerations. –.
As Justice Boddice explained, “to require the applicant to serve an additional period of four and a half years actual custody prior to parole eligibility, when the applicant had already served two years and three months of a four year sentence, did not constitute a period in actual custody that fairly represented his overall criminality”. . In those circumstances, the court (by majority) determined that the sentencing discretion had miscarried.
A de Jersey