R v Herberts

The defendant breached a suspended sentence of 2 years and 6 months’ imprisonment. Prior to that sentence being imposed, the defendant had served around 14 months in prison for breach of a parole order. The question for the Court, the subject of this note, was whether a parole release date could be fixed if all or part of the suspended sentence was activated. Bowskill CJ held s 160B(2) Penalties and Sentences Act 1992 (Qld), which requires a parole eligibility date where the Court has cancelled a parole during the offenders “period of imprisonment”, did not apply. Activation of all or part of the suspended sentence was a new period of imprisonment being imposed; that sentence was not being “served” while suspended. Consequently, s 160B(2) did not apply and the Court was required to fix a parole release date.

Bowskill CJ

2 June 2023

Background

The defendant appeared before the Court for breaching a suspended sentence of 2 years and 6 months imprisonment, relating to possession of methylamphetamine. [1]. That sentence was imposed in respect of offences that breached the defendant’s parole. [3]. As only a parole eligibility date could be given, Bowskill CJ suspended the sentence and incorporated a term of probation. [3].

Finding the breach of the suspended sentence proven, [4], a question arose as to whether the Court could fix a parole release date. [13]–[14], [20]. In particular, section 160B(2) of the Penalties and Sentences Act 1999 (“PSA”) applies to an activation of all or part of the suspended sentence. [20].

Decision of the Supreme Court

Bowskill CJ held s 160B(2) of the PSA did not apply and a parole release date therefore must be fixed. [23].

First, her Honour referred to the observation of Holmes JA (as her Honour then was) in R v Norden [2009] QCA 42, [13]–[15] that a judge acting under s 147 of the PSA is not re-sentencing an offending, but simply dealing with them for a breach of the suspended sentence. [15].

Chief Justice Bowskill then considered the application of s 160B of the PSA. If all or part of the suspended term of imprisonment were activated, this would be to “impose a term of imprisonment” as described by s 160A(1) of the PSA. [16]. Even if the whole of the suspended sentence were activated, s 160B would apply because the term of imprisonment would be less than three years and not a serious violent offence or a sexual offence. [17].

However, the “period of imprisonment” referred to in s 160B(2) does not apply to a suspended sentence. [21]. Section 4 of the PSA defines “period of imprisonment” as “the unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment…” [21].

While a term of imprisonment is suspended under s 144 of the PSA, the imprisonment is not being “served” unless and until an order is made to activate the sentence under s 147 of the PSA. [22]. The suspension of the sentence means that there is a break in the duration of imprisonment. [22].

Her Honour concluded, on that basis, that it “cannot now be said that you have had a parole order cancelled during your period of imprisonment”. [22]. Consequently, s 160B(2) did not apply and the Court was required to fix a parole release date. [23].

A Hughes of Counsel