Coolwell v Commissioner of the Queensland Police Service [2010] QDC 487

DISTRICT COURT OF QUEENSLAND CITATION: Coolwell v Commissioner of the Queensland Police Service [2010] QDC 487 PARTIES: SHAUN CHARLES COOLWELL (appellant) v COMMISSIONER OF THE QUEENSLAND POLICE SERVICE (respondent) FILE NO: 2357/10 PROCEEDING: Appeal against sentence ORIGINATING COURT: Magistrates Court at Richlands DELIVERED ON: 16 December 2010 DELIVERED AT: Brisbane HEARING DATE: 9 December 2010 JUDGE: Rafter SC DCJ ORDERS: 1. Appeal against sentence allowed. 2. Vary the sentence imposed in the Magistrates Court at Richlands on 21 July 2010 by deleting the parole eligibility date on 20 December 2010. 3. Instead the appellant’s parole release date is fixed at 17 December 2010. 4. Otherwise confirm the orders made in the Magistrates Court at Richlands on 21 July 2010. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – where the appellant pleaded guilty in the Magistrates Court to burglary and commit indictable offence, unlawful use of a motor vehicle, unlawful possession of suspected stolen property and contravene requirement by a police officer to state full and correct name and date of birth – where the appellant sentenced to 18 months imprisonment for the charges of burglary and unlawful use of a motor vehicle – where the appellant had committed the offences while on a parole board-issued parole order – where a parole eligibility date was fixed after the appellant had served one-third of the sentence of imprisonment – whether a parole release date should have been fixed instead Corrective Services Act 2006 (Qld), s 205, s 209, s 211, s 215 -- 1 of 9 -- 2 Penalties and Sentences Act 1992 (Qld), s 160B Department of Corrective Services v Fisher, unreported, District Court Maroochydore, 29 September 2010 Kim v Arbuckle [2009] QDC 267 R v Bond [2009] QDC 28 COUNSEL: K B Bichel, solicitor for the appellant M D Thompson for the respondent SOLICITORS: Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent Introduction [1] On 21 July 2010 in the Magistrates Court at Richlands the appellant pleaded guilty to the following charges: Charge 1 Burglary and commit indictable offence; Charge 2 Unlawful use of a motor vehicle; Charge 3 Unlawful possession of suspected stolen property; Charge 4 Contravene requirement by a police officer to state full and correct name and date of birth. [2] All offences occurred on 1 June 2010. [3] In respect of the charges of burglary and unlawful use of a motor vehicle the appellant was sentenced to 18 months imprisonment. In respect of the suspected stolen property charge he was sentenced to six months imprisonment. In respect of the charge of contravening a requirement by a police officer he was fined $300, in default of three days imprisonment. The acting magistrate allowed no time to pay the fine and ordered that the default sentence be served concurrently. The appellant had spent 33 days in pre-sentence custody from 18 June 2010 to 20 July 2010 which was declared to be imprisonment served under the sentence. Because the appellant committed the offences while he was on parole for an earlier offence of unlawful use of a motor vehicle the acting magistrate took the view that it was necessary to fix a parole eligibility date which was specified as being after the appellant had served one third of the sentence which the acting magistrate nominated as being 20 December 2010. [4] On 29 July 2010 the General Manager at the Brisbane Correctional Centre wrote to the officer in charge of Police Prosecutions at the Inala Police Station asserting that s 160B Penalties and Sentences Act 1992 (PSA) required that a parole release date be fixed rather than a parole eligibility date. The letter enquired whether the Police Prosecutions office was seeking a re-opening of the sentence. The General Manager stated that unless otherwise advised, the Brisbane Correctional Centre would comply with the orders issued by the court. Accordingly the appellant would be -- 2 of 9 -- 3 required to apply for release on parole.1 It appears on the face of the letter that a copy was sent to the registrar of the Magistrates Court at Richlands. [5] Apparently no step was taken in relation to the possible re-opening of the sentence. [6] The notice of appeal to this court was filed on 17 August 2010. The ground of appeal was that the sentence is manifestly excessive. However at the hearing of the appeal the appellant sought leave to substitute the following ground of appeal: “The magistrate erred in law by fixing a parole eligibility date instead of a parole release date.” [7] There was no objection to the amendment and therefore leave should be given. The appellant’s antecedents [8] The appellant was 27 years old at the time of the offences. He was 28 years of age when sentenced on 21 July 2010. [9] The appellant has an extensive criminal history spanning the period 1996 to 2010. Many of his convictions are for property related offences, unlawful use of vehicles and unlawful entry of vehicles. He has in the past been placed on probation, ordered to perform community service, sentenced to an intensive correction order and ordered to serve terms of imprisonment. The more serious offences on his criminal history include robbery with actual violence whilst in company for which he was sentenced to imprisonment in the District Court at Beenleigh on 26 February 2004. On 8 August 2007 in the District Court at Beenleigh he was sentenced to 3 years imprisonment for robbery with actual violence and other offences including burglary. He was also ordered to serve the balance of a suspended sentence which was 22 months. He had served 274 days in pre-sentence custody from 7 November 2006 to 8 August 2007. A parole release date was fixed at 7 December 2007. [10] On 18 June 2008 in the Magistrates at Richlands the appellant was sentenced to 2 years imprisonment in respect of an offence of unlawful use of a motor vehicle. That offence occurred between 7 March and 10 March 2008. The appellant was on parole at that time as a result of the sentence imposed on 8 August 2007. Therefore in accordance with s 160B PSA the court fixed a parole eligibility date rather than a parole release date. There is a discrepancy between the appellant’s criminal history and the pre-sentence custody certificate. The criminal history states that the parole eligibility date was 1 June 2008 which is prior to the date of sentence and is presumably incorrect. The pre-sentence custody certificate states that the parole eligibility date was 2 June 2009. The written outline of submissions filed on behalf of the appellant state that the parole eligibility date was 1 June 2009. [11] In any event it seems to have been accepted that the appellant was released on parole on 8 March 2010.2 The appellant’s fulltime discharge date in respect of the 2 year sentence imposed on 18 June 2008 was 17 June 2010. 3 1 Exhibit 1 to the Affidavit of Kylie Michelle Hillard filed 14 September 2010. 2 The pre-sentence custody certificate states that the appellant was “Re-released to parole 08.03.10”; see transcript p 3 l 48. 3 See pre-sentence custody certificate. -- 3 of 9 -- 4 Circumstances of the offences [12] In respect of the burglary offence the complainant returned to her residence at about 8.30 pm on 1 June 2010. She placed her handbag in the kitchen and then went to the other end of the house. When she returned to the kitchen a short time later she discovered that her handbag was stolen. Apart from the handbag her mobile phone and other personal items were stolen. In respect of the unlawful use offence the complainant’s vehicle was serviced at a motor dealer and left for collection. The appellant apparently located the keys and attempted to drive the vehicle away. He was evidently uncertain as to how to leave the premises so he stopped the vehicle. He was approached by staff and then left the vehicle and ran away. He was apprehended a short time later and found in possession of property from the house breaking offence. The police prosecutor informed the acting magistrate that the possession of suspected stolen property offence related to property from the house breaking offence.4 However that is inconsistent with the facts set out in the Queensland Police Service court brief document which forms part of the appellant’s list of documents filed 14 September 2010. That document states that the appellant was certainly in possession of property stolen from that residence but he was also found in possession of shoes, a gold chain, a green charm, a dolphin charm, two keys, a silver and gold Rolex watch, seven stubbies of beer, a bottle of wine and a green necklace with a crucifix. The Queensland Police Service court brief document states that the police conducted checks and were unable to identify the owners of that property. The contravene requirement by a police officer related to the appellant giving an incorrect name and date of birth to the police. Statutory framework [13] Section 160B PSA provides: 160B Sentence of 3 years or less and not a serious violent offence or sexual offence (1) This section applies if neither section 160C nor 160D applies. (2) If the offender has had a court ordered parole order cancelled under the Corrective Services Act 2006, section 205 or 209 during the offender’s period of imprisonment, the court must fix the date the offender is eligible for parole. (3) If subsection (2) does not apply, the court must fix a date for the offender to be released on parole. [14] The parole provisions in the PSA are set out in Part 9 Division 3. The definitions for Division 3 are set out in s 160. The definition of “period of imprisonment” is: period of imprisonment means the period of imprisonment that includes the term of imprisonment mentioned in section 160A. Note— Period of imprisonment therefore includes the term of imprisonment a court is imposing at the time of sentence. [15] The term “period of imprisonment” is also defined in s 4: 4 Transcript p 2 l 50. -- 4 of 9 -- 5 period of imprisonment means the unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment, whether— (a) ordered to be served concurrently or cumulatively; or (b) imposed at the same time or different times; and includes a term of imprisonment. [16] The expression “term of imprisonment” is also defined: term of imprisonment means the duration of imprisonment imposed for a single offence and includes— (a) the imprisonment an offender is serving, or is liable to serve— (i) for default in payment of a single fine; or (ii) for failing to comply with a single order of a court; and (b) for an offender on whom a finite sentence has been imposed, any extension under section 174B(6) of the offender’s finite term. [17] Section 209 Corrective Services Act 2006 (CSA) provides: 209 Automatic cancellation of order by further imprisonment (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. (2) Subsection (1) applies even if the period of the parole order has expired. Note— See section 211 for the effect of the cancellation. [18] Section 211 CSA provides relevantly for the present case: 211 Effect of cancellation (1) This section applies if a prisoner’s parole order is cancelled— … (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. (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— … (c) the prisoner committed the offence mentioned in subsection (1)(f). [19] Section 215 CSA provides: 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. -- 5 of 9 -- 6 The appellant’s contentions [20] Section 160B(2) PSA applies if the offender’s court ordered parole order is cancelled under s 205 or s 209 CSA during the period of imprisonment (emphasis added). The argument is that although the offences to which the appellant was sentenced to another period of imprisonment were committed while he was on parole, he was not sentenced until 21 July 2010 which is after his full-time discharge date on 17 June 2010. [21] It is therefore contended that the automatic cancellation of parole pursuant to s 209 CSA did not occur during the relevant period of imprisonment which means s 160B(2) PSA does not apply. Accordingly s 160B(3) required the court to fix a parole release date. Consideration [22] The appellant’s argument (which the respondent accepted was correct) was expressed as follows: “It is submitted that where a defendant commits an offence while on parole, but otherwise realises the Full Time Discharge Date before being sentenced for the breaching offence, the defendant is entitled to a Parole Release Date.” 5 [23] In R v Bond 6 Everson DCJ held that: “It is clear that the term “period of imprisonment” in s 160B(2) is intended to refer to the period of imprisonment, the subject of the sentence being imposed by the court, at the time of the sentence hearing together with any unrelated sentences of imprisonment still being served and is not intended to have a retrospective effect. The inclusive nature of the definitions set out above has led to some confusion in this regard, however the correct approach is revealed in s 4 of the PSA where the definition refers to “the unbroken duration of imprisonment that an offender is to serve”.”7 [24] The same conclusion was reached by Robin QC DCJ in Kim v Arbuckle 8 although his Honour seems to have been influenced by the view he formed that the term “period of imprisonment” did not encompass imprisonment served on remand. 9 [25] In Department of Corrective Services v Fisher10 the Chief Executive, Department of Community Safety (Corrective Services) applied to re-open a sentence on the basis that the sentencing court erroneously fixing a parole eligibility date rather than a parole release date. Dodds DCJ adopted the same approach concluding that the offender’s parole order had expired before automatic cancellation as a result of the 5 Appellant’s written submissions filed 14 September 2010 at para 10. 6 [2009] QDC 28. 7 R v Bond [2009] QDC 28 at para [16]. 8 [2009] QDC 267. 9 Kim v Arbuckle [2009] QDC 267 at p 5. 10 Unreported, District Court Maroochydore, 29 September 2010. -- 6 of 9 -- 7 imposition of a further sentence of imprisonment. Accordingly the court was required to fix a parole release date under s 160B(3) PSA. [26] If the aim of s 160B(2) PSA is to require an offender whose court ordered parole order was cancelled under CSA s 205 or 209, to apply for parole rather than having a parole release date fixed by the court, then it is difficult to see why the cancellation itself must occur during the period of imprisonment. An offender might commit an offence at any time during the period of a court ordered parole order but the offence might not be detected for some time. There may be a delay in apprehending the offender or in the matter being dealt with by the court. Section 209(2) CSA provides that automatic cancellation occurs even if the parole order has expired. And as I have mentioned s 215 CSA states that a prisoner is taken to have served the prisoner’s period of imprisonment if the parole order expires without having been cancelled under s 205 or 209. [27] There is nothing in the explanatory notes to the Corrective Services Bill 2006 that gives any assistance. [28] However a publication by the Department of Community Safety titled, A guide to parole release and eligibility dates under the Penalties and Sentences Act 199211 lends support to the construction adopted in the cases to which I have referred. The publication states at page 7: “If an offender is sentenced to actual imprisonment for offences committed during a parole order, the parole order is automatically cancelled under s 209 CSA 2006. The parole order will be automatically cancelled even if sentencing for the further offences occurs after the parole order has expired. Where an offender is on court ordered parole and is sentenced to imprisonment for further offences committed during court ordered parole, s 160B(2) PSA 1992 may apply. This section only applies when the offender is actually sentenced to imprisonment, or has the court ordered parole order cancelled by a parole board, during that period of imprisonment. If the offender is sentenced during the period of imprisonment for offences committed during the period of the court ordered parole order the Court must fix a parole eligibility date. If the offender is sentenced for those further offences after the original period of imprisonment had expired, the offender may be entitled to a parole release date. Section 160B(2) PSA 1992 does not apply where the offender was released to a parole order issued by a parole board. In this case the offender’s entitlement to a parole release date is determined in accordance with the general principles of parole as set out in the PSA 1992.” 11 Queensland Corrective Services – February 2010 – Version 2. -- 7 of 9 -- 8 [29] The appellant’s 2 year sentence of imprisonment imposed on 18 June 2008 expired on 17 June 2010. In a sense that is a notional expiration date because s 215 CSA provides that a prisoner is taken to have served the period of imprisonment if the parole order expires without being cancelled under s 205 or 209. If the offender’s parole is automatically cancelled by the imposition of another period of imprisonment the offender becomes liable to serve the period from the date of the further offence to the expiration of the sentence: s 211(2)(c) CSA. [30] In the present case the further offences occurred on 1 June 2010. The appellant therefore became liable to serve the balance of the 2 year sentence. The appellant was returned to custody on 2 June 2010. There was a 16 day parole suspension order issued on 2 June 2010, presumably in accordance with s 205 CSA. 12 He remained in custody and served the period of 16 days. His sentence then expired. [31] The appellant then spent 33 days in pre-sentence custody from 18 June to 20 July 2010 which was declared as imprisonment already served under the sentence. [32] The appellant’s argument overlooked the fact that s 160B(2) PSA is applicable only where a court ordered parole order is cancelled under CSA, ss 205 or 209 during the offender’s period of imprisonment. When the appellant was sentenced to 2 years imprisonment on 18 June 2008, the court fixed a parole eligibility date on 2 June 2009.13 That was because s 160B(2) PSA applied. However the 2 year sentence imposed on 18 June 2008 has been served. Moreover, the offences on 1 June 2010 were not committed when the appellant was subject to a court ordered parole order. Consequently s 160B(2) did not apply. The court was required by s 160B(3) to fix a parole release date. Orders [33] The appeal challenged only the order setting a parole eligibility date rather than fixing a parole release date. There was no challenge to the head sentence of 18 months imprisonment and it was accepted that the appellant should serve six months imprisonment before being released on parole. The acting magistrate fixed a parole eligibility date on 20 December 2010 which was five months from the date of sentence on 21 July 2010. However the appellant had been on remand for 33 days from 18 June 2010 which was declared as imprisonment served under the sentence. [34] In order to give effect to the acting magistrate’s intention to require the appellant to serve six months imprisonment before being released on parole, I would fix a parole release date on 17 December 2010. [35] I therefore make the following orders. 1. Appeal against sentence allowed. 2. Vary the sentence imposed in the Magistrates Court at Richlands on 21 July 2010 by deleting the parole eligibility date on 20 December 2010. 3. Instead the appellant’s parole release date is fixed at 17 December 2010. 12 See pre-sentence custody certificate. 13 See para [10] above. -- 8 of 9 -- 9 4. Otherwise confirm the orders made in the Magistrates Court at Richlands on 21 July 2010. -- 9 of 9 --