Allardice v R [2001] QDC 43

DISTRICT COURT OF QUEENSLAND CITATION: Allardice v. R [2001] QDC 043 PARTIES: ALLARDICE, Andrew John (the Applicant) And THE QUEEN (the Respondent) FILE NO/S: 06/2001 DIVISION: Criminal PROCEEDING: Application to re-open sentence ORIGINATING COURT: District Court, Ipswich DELIVERED ON: 30th March, 2001 DELIVERED AT: Maroochydore HEARING DATE: 5th March, 2001 JUDGE: Judge Robertson ORDER: The application to extend time is refused. The application to re-open is dismissed. CATCHWORDS: CRIMINAL LAW – Sentence – application to re-open sentence – applicant considered ineligible for parole by Community Corrections Board despite recommendation for parole by the Sentencing Judge – whether sentence imposed was based on a “clear factual error of substance” CRIMINAL LAW – Sentence – application for leave to extend time – effect of delay in making application Cases Judicially Considered R v. Mackenzie [2000] QCA 324 (considered) R v. Solomon (1992) 62 A.Crim.R. 296 (considered) Bugmy v. The Queen (1990) 169 CLR 525; 47 A.Crim.R. 433 (mentioned) R v Shrestha (1991) 173 CLR 48; 54 A.Crim.R. 217 (mentioned) Williams v. Qld Community Corrections Board [2000] QCA 75 (mentioned) Hodzic v. R (unreported judgment of the District Court, Hoath DCJ, 12 January 2001) (considered) R v. Mitchell (unreported judgment of the District Court, Samios DCJ, 8 December 2000) (considered) Ford (unreported, Court of Appeal, CA No. 112 of 1997, 2 May 1997 pp6-7) (mentioned) -- 1 of 8 -- 2 Statutes Judicially Considered Penalties and Sentences Act 1992 - s.188 COUNSEL: K. Mellifont (for the Applicant) S. Courtney (for the Respondent) [1] The applicant seeks to re-open a sentence proceeding in September 1997 pursuant to s.188(1)(c) of the Penalties and Sentences Act 1992. The applicant is required to obtain leave, as the application is out of time: s.188(5). [2] On 12 September 1997 at the Ipswich District Court I sentenced the applicant for a number of serious offences (including rape) to an overall sentence of 6½ years. The applicant pleaded guilty at the commencement of his trial. His co-accused had a trial, was convicted of one count of rape and sentenced to six years imprisonment. As a reflection of the applicant’s plea of guilty, I recommended that he be considered eligible for release on parole after serving 26 months of the sentence. It is most unusual for an application to re-open a sentence to be made so long after the sentencing procedure; and leave to extend time in which to make the application, for that reason alone, should not be given unless there are exceptional circumstances. The application is made on the basis of the judgment of the Court of Appeal in R v. Mackenzie [2000] QCA 324. [3] The applicant submits that at the time I sentenced him the Court sentenced “on a clear factual error of substance”: s.188(5)(c) of the Penalties and Sentences Act 1992 (the Act). The clear factual error of substance is that at the time of sentence I was not aware that at the time the applicant became eligible for parole, he did not have any realistic prospect of obtaining parole nor would the Queensland Community Corrections Board (the Board) consider his application “properly” on the merits. The Facts [4] At the time of sentence, I recommended parole at 26 months. The power to make such a recommendation is derived from s.157(2) of the Act. Therefore the applicant became eligible for parole on 9 November 1999. In April 1999 he applied for parole, home detention and release to work. On 28 September 1999 the Board replied as follows: “The Queensland Community Corrections Board has carefully considered your application for parole, home detention and release to work dated 15 April 1999 and has paid particular regard to all the matters in your favour. However there is another factor which indicates that it may well be inappropriate to approve your application. The Board is obliged by law to adhere to certain Guidelines. It can depart from them only when it is satisfied that exceptional circumstances exist. One such Guideline provides that a prisoner -- 2 of 8 -- 3 should achieve a low or open security classification prior to approval for release to a community-based program with a point score of less than 25. The Board has been advised that your classification is medium and your point score is 38. The Board has so far been unable to discover any circumstances which would justify its departure from the Guideline. Consequently the Board is presently unwilling to approve your application. You are not obliged to forward further written submissions in support of your application. If you intend to do so, you are required to send them to this office within seven days of your receipt of this letter.” [5] As a result of this decision, the applicant undertook to obtain a low security classification. By 13 July 2000 he had achieved a low security classification of 24 points. In February 2000 he made a further application for parole. On 11 July 2000 he was advised by the Board that it had requested a psychiatric report and would consider the application further when the assessment is received. On 5 September 2000 the Board again rejected his application for early release in these terms: “The Board has carefully considered your application for early release, and has paid particular regard to all the matters in your favour; including, but not limited to, the sentencing Judge’s recommendation, your satisfactory prison behaviour and the courses and programs you have completed while in custody. However, there are other factors about which the Board is concerned, and which might outweigh the matters which stand to your credit. In 1997 you pleaded Guilty to Rape. The learned sentencing Judge commented that the matter most in your favour was your plea of Guilty. You were sentenced to six and a half years, with a recommendation that you be considered eligible for release on Parole after serving 26 months. The Judge’s sentencing remarks included the comment that you punched your victim in the face during the course of the rape for the purpose of subduing her. Such was the effect of your assault upon her that three weeks after she attempted suicide. When you were interviewed by an Assessment Unit in February this year, you gave the following version of events. You claimed that you and your co-offender drove to a sportsfield with the victim and her boyfriend. The boyfriend left for a short time. While he was absent, you, your victim, and your co-offender all became amorous. When the boyfriend returned, he appeared to resent what was happening and had a fight with you, after which he left the area. You and your co-offender then had consensual intercourse with the victim. -- 3 of 8 -- 4 You were interviewed by a psychologist in May and June this year. You gave that person a different version. You said that you and your co-offender walked (not drove) with the victim and her boyfriend to the sportsground. The boyfriend left the area, and while he was absent you and the victim had consensual intercourse. After the boyfriend returned, the victim claimed (wrongly) that she had been raped. The boyfriend then attacked you and you defended yourself. It is noted that you pleaded Guilt to assaulting the victim’s intellectually handicapped boyfriend. You have claimed to the Assessment Unit and the psychologist that you pleaded Guilty to Rape only because your legal representative advised you to do so. In other words, you claim that you wrongly confessed to a very serious crime, obviously knowing that doing so would result in a substantial prison term, simply because a lawyer told you to. The Board has so far had difficulty accepting the proposition. It presently seems far more likely to the Board that you pleaded Guilty because you were responsible for the offence. That provisional view has been formed after considering your plea of Guilty, the victim’s attempted suicide (which is hardly consistent with her having consensual intercourse), and the variations in the versions you have provided this year. Denial of responsibility for an offence does not, and should not, of itself necessarily preclude an inmate from early release. It is necessary in each case to assess the likely risk presented by the applicant. You have a history of violent behaviour extending back to 1993. A Corrective Services Department Risk/Need Inventory has scored you as presenting a high risk of re-offending. It presently seems to the Board that you may very well present an unacceptably high level of risk of re-offending if released from custody, at least at this stage. Since you have been in custody, you have taken steps to address your alcohol problem. It appears that you attribute all your offending behaviour to alcohol abuse. As you are no doubt well aware, not everyone with an alcohol problem attacks people or commits rape. It may well be that alcohol abuse causes you to lose your inhibitions and then commit offences. However, alcohol abuse is most likely only the catalyst for offending. In the Board’s experience, there are usually underlying reasons why people commit offences; and it is those underlying causes on which you need to work as well as overcoming the alcohol abuse problem. A plea of Guilty carries with it an acknowledgment of responsibility for all the elements of the offence to which the plea was entered. The learned sentencing Judge had no way of knowing that you would subsequently deny responsibility. In those circumstances, the -- 4 of 8 -- 5 Board presently considers that less weight should be attached to the Judge’s sentencing recommendation than would otherwise be the case. For the reasons mentioned, the Board is currently unwilling to approve your application. You are not obliged to forward further written submissions in support of your application. If you intend to do so, you are required to send them to this office within seven (7) days of your receipt of this letter.” [6] It is common ground that the applicant has been of good behaviour and industry whilst in prison. The Application [7] The application before me, when viewed as a whole, has many features of an application to review the decision of the Board dated 5 September 2000, which is beyond the jurisdiction of this Court. On such a review, the Board’s conduct can be reviewed, and a number of its propositions of law can be challenged, but that is not my role on an application to re-open. Counsel for the applicant submits that I can consider the application, as it were, as if it were made at the time of the first refusal on 8 September 1999, without considering the Board’s second refusal on 5 September 2000 which appears to be based on quite different grounds to the earlier refusal. [8] If I adopted that course, then it is submitted that as I was not aware at the time of sentence of these facts: (1) that based on some points system in place in prisons, the applicants security classification as at 9 November 1999 would be medium security; (2) that the Board felt it was bound as a matter of law by guidelines issued by the Minister to the effect that a prisoner should achieve a low or open security classification prior to approval for release to a community-based program with a point score of less than 25; (3) that there was no prospect of the Board following the recommendation; I therefore sentenced on the basis of a clear factual error of substance. It is submitted that, had I been aware of the true facts I would have reflected the applicant’s co-operation by his plea of guilty in a different way. The Law [9] As I have noted, the applicant relies heavily on the judgment of the Court of Appeal in R v. Mackenzie [2000] QCA 324. The applicant has also referred me to two decisions of the District Court, in which the Court has re-opened and re-sentenced pursuant to s.188(1)(c). The making of a recommendation for earlier parole eligibility than would otherwise be the case, does not bind the Board. In R v. Solomon (1992) 62 A.Crim.R. 296 at 299 Ambrose J said: “… a sentencing judge has no function in determining if and when a prisoner may be released by a (Board), except insofar as he may -- 5 of 8 -- 6 make a recommendation which will permit the Board to grant an application for parole at a different time from what would otherwise be the case having regard to the provisions of the legislation.” [10] His Honour remarks reflect a long line of authority in which it is recognized that the role of a sentencing Court is quite different to the role exercised by a parole board: see for example the comments of the members of the High Court in Bugmy v. The Queen (1990) 169 CLR 525; 47 A.Crim.R. 433; and see the judgment of Deane, Dawson and Toohey JJ in R v Shrestha (1991) 173 CLR 48; 54 A.Crim.R. 217 at 67-69; 231-233. [11] There is nothing in the judgment of the Court of Appeal in Mackenzie which conflicts with the statement of Ambrose J; indeed in the leading judgment of Dutney J (with whom McPherson JA agreed) His Honour said (at p6 of his judgment): “Here in imposing sentence with a recommendation for early parole the Court should be taken to have appreciated that such a recommendation is not a guarantee of release on the earliest possible date. The prisoner must still apply and satisfy the Community Corrections Board that it is appropriate to release her having regard to proper criteria and the circumstances of her particular case.: see also Williams v. Qld Community Corrections Board [200] QCA 75.” [12] The facts of Mackenzie are quite unusual. Mrs Mackenzie was convicted of manslaughter on the basis of her own plea and was sentenced to a term of imprisonment with a recommendation for earlier parole eligibility as a reflection of her co-operation and plea of guilty. Her appeal against conviction was dismissed, but her appeal against sentence was successful and the Court of Appeal (by majority) reduced the sentence to five years with a recommendation for parole after serving 12 months: Mackenzie v. R [2000] QCA 324, 11 August 2000. As a consequence of the order of the Court of Appeal, Mrs Mackenzie became eligible for parole on 6 September 2000. On 17 August 2000, she applied for parole, but her application was declined for a number of reasons including the reason that as a result of a delay in the hearing of her appeal she had not participated in programmes (not available to prisoners who have appealed) and therefore by application of the “points” system she was still classified as medium security “on 38 points”; and by application of the relevant Ministerial Guideline she could not be released until she had achieved a low or open security classification. As in this case, the Court had not been informed at the time it reduced the sentence of the classification system and the “points” system. Incredibly, because reclassification reviews were only done at three or six months intervals, at the time of the re-opening application on 13 October 2000, the applicant’s security classification was still governed by the original sentence which had been reduced on 11 August 2000. McMurdo P said: “Although the matter is finely balanced, I am finally persuaded that the sentence (imposed on 11 August 2000) was decided on a clear factual error of substance … I stress this case turns very much on its own special facts; it is not appropriate to re-open a sentence under this section merely because a judicial recommendation for parole is not subsequently followed by the Community Corrections Board.” -- 6 of 8 -- 7 [13] Dutney J (with whom McPherson JA agreed) after construing the phrase “clear factual error of substance” to mean “an erroneous factual basis in some material way”, re-iterated the President’s comments that s.188(1)(c) does not permit a re- opening “because it transpires subsequently that the recommendation is not given effect to by early release”. He then said: “In this case, however, the applicant goes further and says that because of the way the system operates and the timing of the judgment of this Court she would never in fact have been released on or about the anniversary of her incarceration and that the Court must have been labouring under an erroneous view of that fact in imposing a sentence of imprisonment coupled with a recommendation that would never have been accommodated within the parole system irrespective of the particular merits of the applicant’s case.” [14] The Court re-opened the sentence, and instead of a recommendation ordered that the sentence be suspended thus facilitating the immediate release of the applicant. [15] In Hodzic v. R (unreported judgment of the District Court, 12 January 2001), His Honour Judge Hoath re-opened a sentence imposed on the 24th January 2000 on the basis of clear factual error of substance. In that case His Honour had originally imposed a sentence of 2½ years and declared 201 days already served pursuant to s.161 of the Act. As a recognition of his plea of guilty, a recommendation after nine months was made. At the time of sentence, His Honour was not aware of the security classification system based on points deducted for participation in programmes etc. The applicant was not eligible for participation in these programmes as a remand prisoner, and as a result, at the time of his eligibility for parole he had no realistic prospect of being considered for release at or soon after the eligibility date. His Honour said: “Had I been aware of those matters, I would have structured the sentence I imposed in another way to ensure that the applicant’s co- operation with the authorities and his plea of guilty were recognized in a tangible and meaningful way.” [16] An application pursuant to s.188(1)(c) was considered by His Honour Judge Samios in R v. Mitchell (unreported judgment of the District Court, 8 December 2000). The applicant was sentenced by His Honour on the 8th October 2000 to a total term of two years. As a reflection of his co-operation and his plea of guilty, a recommendation for parole was made after eight months. His Honour was satisfied on the evidence that it was unlikely that the applicant would be released until he had served his full sentence less remissions. At the time of the application to re- open, the applicant had been refused early release and had then been in prison for some 14 months. It is clear again from His Honour’s reasons that the security classification system based on a reducing points score was the reason behind the Board’s refusal to grant early release. His Honour found that at the time of the original sentence, the Court proceeded on a clear factual error of substance in that because of the operation of the classification system, the applicant could not have been released on parole at the time of the recommendation nor indeed at the statutory half-way date. -- 7 of 8 -- 8 [17] The reasoning and conclusions of both His Honour Judge Hoath and His Honour Judge Samios are consistent with the approach taken by the Court of Appeal in Mackenzie. Clearly, the facts here are distinguishable from the factual scenario in Mackenzie, Hodzic and Mitchell. A clear and important distinguishing factor is the delay in making this application. Had the application been made soon after the first refusal by the Board on 28th September 1999, then despite the length of time that had elapsed since sentence, the approach taken by the Court of Appeal in Mackenzie, and indeed the approach taken by the Judges of the District Court, would be very strongly persuasive. However, that is not what has occurred. The applicant has accepted the decision of the Board, and set out to lower his security classification to comply with the Board’s requirements. Regrettably for him, having successfully obtained a low classification, and continued to be of good conduct and industry, he was again refused by the Board on 5th September 2000 for the different reasons set out above. For that reason alone, it would be entirely inappropriate to extend time and re-open the sentence particularly in light of the earlier authorities to which I have referred. [18] The application to extend time is refused and the application to re-open is dismissed. I was informed by counsel for the applicant that if this application was refused, an application would be made to the Supreme Court for a statutory order to review the decision of the Board on 5th September 2000. In my opinion, such an application should have been made before this application. The operation of a security classification system based apparently on a subjective award of minus points; coupled with Ministerial Guidelines which seem to be given the force of law by the Board; and the unavailability of programmes and other options to remand prisoners or prisoners with pending appeals; has alarming implications for other important public policy considerations, e.g. the need to provide amelioration orders on sentence, which recognise the importance to the efficient administration of justice of co-operation and early pleas of guilty in a practical and meaningful way. Such matters can be properly considered by the Supreme Court on an application for statutory review: Williams v. Queensland Community Corrections Board [2000] QCA 75, but are generally not relevant to an application of this kind. In the same vein, such matters can at least raise the spectre of an abdication of the sentencing function to a department of executive government; a prospect of some significance in terms of public policy: see the remarks of McPherson JA in Ford (unreported, Court of Appeal, CA No. 112 of 1997, 2 May 1997 pp6-7) in relation to calculations of pre-sentence detention. -- 8 of 8 --