The Honourable Chief Justice Helen Bowskill presented the below paper to the Queensland Magistrates State Conference, on Thursday 26 May 2022 at The Pullman Hotel Conference Centre. The article has been re-printed in Hearsay with her Honour’s permission.
Good morning, friends and colleagues. I acknowledge all of you, and also acknowledge the traditional owners of this land and pay my respects to their Elders, those who have spoken for this land in the past and who do so today.
Thank you to Chief Magistrate Terry Gardiner for inviting me to speak to you today, on the topic of sentencing adults. It is a pleasure once again to join you at your annual conference, all the more so because we are doing so in person this year, rather than through an impersonal screen.
Sentencing is the bread and butter of our collective work as judicial officers.
But it is a complex task, involving the so-called “instinctive synthesis” of many different and sometimes conflicting features in any given case, to arrive at a single result.1 It can be an intellectually exhausting task, as we listen to the submissions for both sides and then undertake the necessary analysis to arrive at a decision and articulate reasons for it on the spot. There is at times the added stressor of public glare, and subsequent media criticism, the negative impact of which is compounded when the criticism is, at best, ill-informed or, at worst, just plain wrong.
So, as far as I’m concerned, the more help we can get on this topic the better. A few years ago, Judge Paul Smith presented a paper to your annual conference on Sentencing,2 which I commend to you. May I also commend to you a paper delivered last year by Judge Glen Cash QC, entitled ‘Customary Law and the Recognition of Systemic Disadvantage in the Sentencing of First Nations Persons’.3 What I propose to do is go through some of the key sentencing decisions in the last twelve months and then say something about how to approach sentencing when there are no comparable decisions available to assist you. Hopefully there will be time for questions or comments at the end.
Natural justice
As with everything we do, natural justice is a fundamental requirement of sentencing. In broad terms, the requirements of natural justice are the hearing rule and the bias rule.4
The importance of the hearing rule in sentencing was emphasised by Keane JA, then of the Court of Appeal, in R v Cunningham [2005] QCA 321 where his Honour said (at p 5):
“To impose a penalty without allowing the person affected to have an opportunity to respond is a clear breach of the rule of natural justice that a court is required to follow. As Lord Fraser of Tullybelton, in a passage approved by this Court in Re Criminal Proceeds Confiscation Act 2002 [2004] 1 Qd R 40; [2003] QCA 249 at 49, said in In re Hamilton; In re Forrest [1981] AC 1038 at 1045:
‘One of the principles of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him, so that he, or someone acting on his behalf, may make such representations, if any, as he sees fit. That is the rule of audi alteram partem which applies to all judicial proceedings, unless its application to a particular class of proceedings has been excluded by Parliament expressly or by necessary implication.
It has been recognised in previous decisions of this Court that the principle described by Lord Fraser is as applicable to sentencing as it is to any other judicial proceeding. See, for example, R v Moodie [1999] QCA 125; CA No 439 of 1998, 14 April 1999.”
The issue in R v Cunningham was the imposition of a driver licence disqualification, in addition to the sentence otherwise imposed. The Crown prosecutor had made no submission on that subject, and the sentencing judge gave no indication that he was minded to exercise the discretion vested in him by s 187 of the Penalties and Sentences Act 1992, before doing so. The Court of Appeal held that the sentencing judge had erred in failing to observe the need to afford the offender’s counsel the opportunity to address him in relation to whether a disqualification should be imposed.
More recently, in R v JAB (2020) 4 QR 588; [2020] QCA 124 the Court of Appeal provided the following assistance in relation to how to give effect to this in practical terms:
“[27] A principle of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against that person.5
[28] This principle has been adopted by this Court to set aside sentences imposed without first inviting submissions as to matters such as licence disqualification,6 a later than legislatively provided for parole release date,7 the declaration of a serious violent offence8 or the recording of a conviction where reasons were not given and submissions were not invited before the recording of that conviction.9
[29] That principle does not oblige a sentencing judge to set out each and every alternative available in sentencing a defendant. As Atkinson J observed in R v Robertson:10
‘Counsel who appear before judges on sentences are expected to know the provisions of Queensland’s sentencing law and to make relevant submissions.
Unless the judge is considering imposing a sentence which may be considered unusual or an additional penalty which is unusual, there is no obligation upon a sentencing judge to advise counsel of the sentence that may be imposed and to seek specific submissions on that.’ (footnote omitted)
[30] Whether a sentencing judge’s sentence may be considered unusual or involving an additional penalty will depend upon the circumstances of a particular case. A sentence would not normally be considered unusual or an additional penalty if its content can properly be said to have fallen within the contemplation of the parties, having regard to the issues in dispute at sentence and the submissions made by the parties at that sentence hearing.
[31] As Atkinson J said in R v Robertson in the passage above, unless a judge is considering imposing a sentence which may be considered “unusual or an additional penalty which is unusual”, there is no obligation upon the judge to advise counsel of that possible outcome. The reason why that is so is twofold.
[32] First, as her Honour said, judges make decisions upon the basis that counsel who appear before them know the law that bears directly upon the case at hand. Judges are entitled to act upon the footing that, if a particular order ought to reasonably be within the parties’ contemplation having regard to the circumstances of a case, then the silence of counsel upon that issue can be taken by the judge to be the result of a professional judgment that there was nothing useful for counsel to say about it. Second, judges do not expect, and do not want, counsel to make submissions about orders that are evidently not going to be made and counsel should not waste time making them.
[33] It follows that if a judge is thinking about making an order that, despite appearances, might be made, then the judge is obliged to give the parties a fair opportunity to be heard upon that issue. Otherwise, in accordance with expected practice, the judge’s silence, despite having that course in mind, would mislead counsel into believing that no submissions were necessary.
[34] That being so, the word “unusual”, as used in R v Robertson, should not be misunderstood to be a term of art or as stating a “test” that can be applied. The word was merely an apt adjective to describe an order which the aggrieved party could not reasonably have been expected to have in mind before it was made.
[35] In short, the real issue is whether a judge’s omission to give the parties notice that a particular order might be made has resulted in a failure to afford the parties a reasonable opportunity to be heard.”
In that case, the particular issue was the recording of a conviction for a juvenile offender. The prosecutor had made submissions in relation to the recording of a conviction but, significantly, those submissions did not positively contend for the recording of a conviction; although they expressly acknowledged the impact recording a conviction would have on the young offender’s future employment opportunities. In circumstances where the sentencing judge did not indicate in the course of the hearing that consideration was being given to the recording of a conviction, it was considered unsurprising that defence counsel made no submissions about. That was particularly so having regard to the unusual feature of sentencing juveniles, namely, that the starting position is that no conviction is recorded.
The failure of the sentencing judge to indicate that consideration was being given to recording a conviction, and so to give the offender’s counsel the opportunity to make submissions about it, was a breach of the principle of natural justice.
A recent example, of an appeal from a sentence imposed by this Court being allowed on this ground is Ryan v Queensland Police Service [2021] QDC 206. In that case, the Prosecutor had submitted for a penalty of nine to 12 months imprisonment and that in the circumstances of the case, consideration could be given to an immediate parole release date. The solicitor for the offender had submitted for a penalty of 9 months, with immediate release on parole. The Magistrate sentenced the offender to 18 months, and fixed a parole release date after six months. On the appeal, Judge Coker found that “there was no indication of the fact that the learned Magistrate was minded to consider a penalty significantly greater than that which might have been proposed by the Prosecutor, and that that was not communicated to the legal representatives for the appellant”, and said that was a factor which “looms large in relation to the determination of this matter”. His Honour otherwise concluded that the sentence was manifestly excessive.
In my experience, it is always a good idea to flag to the parties if you have a different view about what the penalty, or the structure of the sentence, ought to be – sometimes the process of doing that can prompt a submission which draws to your attention something you were not aware of, whether a factual matter or a legal matter. And the brief time it takes to do so is well worth avoiding the failure to afford natural justice as a ground of appeal.
Totality
I find that the word “totality” sometimes gets used as a synonym for “the vibe” in sentencing submissions.
As to when the totality principle actually applies, the following summary from the reasons of Fraser JA in R v Wilson [2022] QCA 18 at [26] is a helpful reminder:
“[26] It is necessary next to consider the application of the totality principle. Many judgments of this Court discuss the circumstances in which the totality principle applies: see, for example, R v Beattie; Ex parte A-G (Qld),11 R v Kendrick,12 R v WBK,13 and R v CCT.14 The relevant circumstances may be summarised as follows:
(a) In Postiglione v R,15 McHugh J stated that the totality principle ‘requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved’.
(b) In Mill v R,16 the High Court held that the totality principle applied also in cases in which an offender is sentenced a long time after the commission of the offence because, during the intervening period, the offender was serving a sentence imposed in another State ‘in respect of an offence of the same nature and committed at about the same time’. In such a case, the correct approach is to ask what would be likely to have been the effective head sentence if the applicant had committed all of such offences in the same jurisdiction and had been sentenced for all such offences at one time.17
(c) In R v Gordon,18 Hunt CJ at CL held that the totality principle applies also when a sentencing judge is imposing a sentence cumulatively upon or overlapping with ‘an existing custodial sentence’. …”
Of course, there may be other circumstances which, although not falling within the totality principle per se, should be taken into account by the sentencing court as part of the obligation to “punish the offender to an extent or in a way that is just in all the circumstances”.
Pre-Sentence Custody
As you would be aware, in 2020 s 159A(1) of the Penalties and Sentences Act 1992 was amended. The section now provides:
“If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders.” [underlining added]
Prior to its amendment, the section included the words “and for no other reason” after the underlined part.19
I had reason to consider the effect of this amendment in a decision called R v Whitely [2021] QSC 154, and held that the broad discretion now conferred by s 159A(1) extends to a power to formally declare time served even where that time is served under a previously imposed sentence. Justice Henry, in R v Stewart [2021] QSC 187, also considered the point, reaching the same conclusion (see at [28]-[43]).
The Court of Appeal has confirmed that once s 159A(1) is engaged – because an offender is being sentenced to a term of imprisonment for an offence for which he or she has been held in custody – s 159A empowers the sentencing court to make a declaration in the prisoner’s favour in relation to time for which the prisoner was on remand whilst serving a previous sentence: see R v Wilson [2022] QCA 18 at [18] per Fraser JA and R v O’Connor [2022] QCA 65 at p 4 per McMurdo JA.
Attention must also be paid to s 159A(3), (3A) and (3B), which provide:
“(3) If an offender was held in custody in circumstances to which subsection (1) applies, and the court has not made an order mentioned in subsection (3A), the sentencing court must, as part of the sentencing order—
(a) state the dates between which the offender was held in presentence custody; and
(b) calculate the time that the offender was held in presentence custody; and
(c) declare the time calculated under paragraph (b) to be imprisonment already served under the sentence.
(3A) Subsection (3B) applies if—
(a) an offender was held in custody in circumstances to which subsection (1) applies (presentence custody); and
(b) the sentencing court orders that the time, or part of the time, the offender was held in custody is not to be taken to be imprisonment already served under the sentence.
(3B) The sentencing court must, as part of the sentencing order—
(a) state the dates between which the offender was held in presentence custody; and
(b) calculate the time that the offender was held in presentence custody; and
(c) declare the part of the time that is taken to be imprisonment already served under the sentence or declare that no time is taken to be imprisonment already served under the sentence.”
Importantly, there is a discretion to be exercised under s 159A(1).
As the Court of Appeal has also confirmed, there is no preferred or prima facie position in relation to how pre-sentence custody is to be dealt with – that is, s 159A(1) is not to be read as a requirement to take such custody into account unless persuaded otherwise. As Fraser JA explained in R v Wilson [2022] QCA 18 at [32]:
“If s 159A(1) were read in isolation from the other provisions of that section, it would be arguable that pre-sentence custody, whether on remand for the subject offences only or whether on remand for those offences and also by way of imprisonment under a previous sentence, is to be treated as imprisonment already served under the sentence unless some good reason is shown why that should not be so. Having regard to the context supplied by the other provisions of the section [referring to s 159A(3), (3A) and (3B)], the better construction is that there is no preferred or prima facie position. The same statutory language is used to authorise the making of each form of declaration and the section does not express any guidance for the way in which the discretion to make a declaration should be exercised. In these circumstances, the amendment seems designed to increase the flexibility allowed to sentencing courts to structure sentences in ways that facilitate the imposition of a just penalty in conformity with applicable statutory provisions and common law sentencing principles that are consistent with those provisions.” [underlining added]
In R v Braeckmans [2022] QCA 25 the Court of Appeal dealt with an issue not addressed in Whitely, which is the interrelationship between s 159A and the requirement that in a case to which s 156A(2) applies, a sentence of imprisonment must be ordered to be served cumulatively with any other term of imprisonment the offender is liable to serve. In that case, McMurdo JA (with whom Sofronoff P and Kelly J agreed) said:
“[30] Section 156A leaves the sentencing court with no discretion: in circumstances which engage the section, the sentencing court must impose a cumulative sentence. On the other hand, s 159A provides a discretion to the sentencing court. Where s 159A is engaged, the sentencing court may declare the whole of the time on remand for the subject offence as time spent in custody in serving the sentence, or it may declare some or none of it as time served. Because s 159A does not mandate an allowance of pre-sentence custody, but instead leaves that to the sentencing court’s discretion, the two sections can be construed so that they give effect to harmonious goals.20 The discretionary power under s 159A is an element of the court’s sentencing power, so that it must be exercised consistently with the requirements of the Act, including the specific requirement of s 156A. Neither the terms of s 159A nor the explanatory note provide any indication of an intention that the amendment to s 159A was to allow sentencing courts to qualify the mandatory terms of s 156A.
[31] Consequently, in a case such as the present one, a sentencing judge must exercise the power under s 159A to avoid the consequence that a cumulative term of imprisonment will become in part a concurrent term. A declaration of pre-sentence custody in the prisoner’s favour should not have been made in the present case. Instead it should have been declared, pursuant to s 159A(3B)(c), that no time is taken to be imprisonment already served.”
The position was summarised by McMurdo JA in R v O’Connor [2022] QCA 65 at p 4:
“Once s 159A is engaged, the sentencing court is obliged to consider whether to declare all of the time as imprisonment already served, or that all or part of the time is not to be taken to be imprisonment already served. There is no preferred or prima facie position that a prisoner will have the benefit of the whole of the period, unless the court is persuaded to the contrary. If a cumulative sentence is being imposed so that it will commence from a future date, the court cannot declare that any of that sentence has already been served.”
In practical terms, some of the considerations that may be relevant, when you are considering whether to declare time the offender has already served in custody, because they were held on remand simultaneously with a term of imprisonment imposed earlier, might include:
(a) The circumstances in which the offender came to be sentenced for the later offences – an example, given by Henry J in R v Stewart [2021] QSC 187 at [36] is:
“… an offender who, in a short burst of offending, commits 12 offences might be arrested and sentenced for 10 of them. Subsequently, while serving a term of imprisonment for those 10 offences, the police may belatedly charge the offender with a further two offences that were committed during the same period of offending and were well known to investigating police but were not charged earlier because of a bureaucratic delay or oversight. If those two additional offences do not materially change the overall criminality for which the offender was previously sentenced, it could scarcely be regarded as an unreasonable result that the period of imprisonment already served by the time the final two offences are the subject of a sentence, be declared to be time already served in respect of the sentence being imposed.”
(b) That may be contrasted with the circumstance where an offender is sentenced to a term of imprisonment, released on parole, then reoffends and is returned to custody as a result. The court sentencing the offender for the later offences, committed in breach of parole, may take a very different view, if asked to declare time served.21 Older authorities, which addressed the court’s discretion to ameliorate a later sentence, having regard to time served in pre-sentence custody prior to the statutory provision, discussed this in terms of the reason why the person found themselves serving the time they did, prior to later sentence,22 which I have found a useful analysis.
(c) Considerations of general deterrence – which may be better served by preserving the head sentence and moderating the effect of the sentence on the particular offender by making a declaration of time already served.23
Effect of declaration of pre-sentence custody – parole release date at full time release date
It is useful to remember that the effect of a formal declaration of pre-sentence custody is to “backdate” the start of the sentence.24
So, to give a hypothetical example, if you sentence an offender to 12 months’ imprisonment, and you declare 12 months of pre-sentence custody, the start of that sentence is backdated to the beginning of that 12 months, with the result that the person has fully served their sentence.
In that circumstance, there is a somewhat anomalous position that arises under the Penalties and Sentences Act.
Under s 160B(3), where an offender is sentenced to 3 years or less, and the offence is not a serious violent offence or a sexual offence, “the court must fix a date for the offender to be released on parole”. That section does not apply if the court makes an intensive correction order, a prison-probation order or suspends (wholly or partly) the term of imprisonment: s 160A(6).
Section 160G then provides, relevantly, as follows:
“160G Court may fix any day of sentence as parole release date
(1) If, under this Act, the court must fix a parole release date for an offender, the court may fix any day of the offender’s sentence as the offender’s parole release date.
Examples—
1. An offender who has been held in remand for 7 days is found guilty of an offence and sentenced to 7 days imprisonment. The sentencing court may fix the sentencing day as the offender’s parole release date.
2. An offender is sentenced to 14 days imprisonment for contempt of court. The sentencing court may fix the last day of the sentence as the offender’s parole release date.
(2) If the offender’s parole release date is the date the offender is to be unconditionally released from lawful custody, the chief executive (corrective services) is not required to issue a court ordered parole order under the Corrective Services Act 2006, section 199.
(3) If the court fixes the date on which an offender is sentenced as the offender’s parole release date and subsection (2) does not apply, the offender is taken immediately to be subject to a court ordered parole order—
(a) containing the conditions mentioned in the Corrective Services Act 2006, section 200(1); and
(b) requiring the offender to report to a probation and parole office as defined under that Act and obtain a copy of the court ordered parole order between 9 am and 5 pm either on the day the court fixes the offender’s parole release date or on the next business day.”
The effect of fixing a parole release date, on the last day of the sentence (whether that is in the future, or because of the backdating effect of a declaration of pre-sentence custody), is an order for the offender to be unconditionally released from lawful custody on that day. It is in that respect a “fiction” to refer to fixing a “parole release day” in this context, because the offender will not be released on parole – they will be unconditionally released. But that seems to be what the statutory provisions provide for.25
Plea of guilty – Parole Board delays
Thankfully, the Parole Board has caught up on the terrible backlog that affected so many applicants for parole during 2020 and 2021. My understanding is that the Board is now dealing with applications within the 120 day time period required under s 193(3) of the Corrective Services Act 2006.
But I am sure you, like me, received submissions during the height of that problem about how that could or should be factored into account, and there is no doubt that it resulted in the distortion of some sentences, whether in terms of the length of them, or the structure of them, from that which the sentencing judge or magistrate would otherwise have considered appropriate, but for the knowledge of the delays besetting parole decisions.
Although the problem has been resolved, it is relevant, as a matter of principle, to keep in mind the observations that were made by the Court of Appeal in R v Watson [2021] QCA 225 – among other things, because they are a reminder of the principles we instinctively apply when sentencing a person who has pleaded guilty.
In Watson, the offender was convicted, on his pleas of guilty, of one count of armed robbery and one count of common assault. He was sentenced to four years’ imprisonment on the armed robbery and a concurrent term of six months on the common assault. He was given a parole eligibility date of the date of sentence. He had by then served about 14 months in custody, all of which was formally declared as time served. In fixing that date, which was a bit less than one-third of the head sentence, the sentencing judge said, in his remarks, that he took into account the delays in parole applications being considered. He sought to appeal the sentence on the grounds, first, that the sentence was manifestly excessive and, secondly, that given what was known about parole delays at the time of sentencing, the sentencing judge did not make proper allowance for the offender’s early plea of guilty by fixing the parole eligibility date when he did.
As to the first ground, it was not contended four years was, of itself, manifestly excessive; rather, that a lower sentence, of three years, would have enabled immediate release on parole. That ground was rejected.
As to the second ground, the Court held that the sentencing judge failed to make proper allowance for the offender’s early guilty plea, in light of the notorious delay in dealing with parole applications, by failing to consider whether another form of order – for example, suspending the sentence – may have been appropriate (at [29]). The Court said, after referring to the fact of the delays:
“[28] This known circumstance required the judge to structure the sentence, so far as possible, so as to ensure that the applicant received an appropriate mitigation of his sentence on account of his plea of guilty. The judge was not to know what the likely extent of the delay by the Parole Board would be in the applicant’s case. However, he ought to have recognised the substantial risk that the delay would be of such magnitude that the applicant would have to serve a period of actual custody by which he would be deprived of any substantial benefit from his early plea of guilty. As the substantial risk existed at the time of sentencing, and existed for reasons beyond the applicant’s control, fixing the parole eligibility date as the date of sentencing, in the circumstances of this case, did not realistically provide appropriate mitigation on account of the early plea of guilty.”
And, further:
“[29] … The proper mitigation of a sentence for a plea of guilty is important not only for a just outcome for the applicant, but also to avoid a discouragement to other offenders to plead guilty, whose cases would be similarly affected by known delays in the parole system. In our consideration, the judge’s failure to consider the alternative of a partially suspended sentence was an error, affecting the exercise of the sentencing discretion.”
Of course, there are cases in which you may not be persuaded that suspending the sentence is appropriate, having regard to the offender’s criminal history, or other factors. Section 144(2) of the Penalties and Sentences Act provides that an order suspending (wholly or partly) a term of imprisonment “may be made only if the court is satisfied that it is appropriate to do so in the circumstances”. You may consider that a just penalty, community protection and rehabilitation all point to the need for support and supervision on parole, such that suspending the sentence is not appropriate. But the principle in Watson remains apt. It is still necessary to turn your mind to the alternatives, and consider whether, in the decision you are arriving at, proper mitigation to reflect the plea has been factored into account.
Guilty pleas more generally
R v Watson [2021] QCA 225 also contains a useful summary of the relevant principles – and authorities – in relation to guilty pleas and how they are to be taken into account as part of the sentencing discretion. Interestingly, in the context of another presentation that I recently gave – in relation to the history of the DPP – I came upon reference to the first case in which a discount was given for a guilty plea, R v Pickett [1986] 2 Qd R 441. The then Director of Prosecutions (as the office was first known), Des Sturgess QC, had been lamenting the delays occasioned to the criminal justice system by offenders who were committed for trial, very few of whom had any intention of actually having a trial by jury. Sturgess QC appeared for the Crown in R v Pickett, and persuaded the sentencing judge in that case, Mr Justice de Jersey (as he then was) that moderation of the sentence was appropriate, in light of the guilty plea, “because the due administration of justice is served by encouraging guilty persons to enter an honest plea of guilty at an early stage of the proceedings”. The Annual Report for the ODP subsequently recorded an (almost) doubling of the number of guilty pleas.
For ease of reference, I set out the passage from Watson in which the relevant principles in relation to guilty pleas are set out:
“[18] By s 13(1) of the Penalties and Sentences Act 1992 (Qld) (“the Penalties and Sentences Act”), a court which is imposing a sentence on an offender who has pleaded guilty to an offence must take the guilty plea into account and may reduce the sentence that it would have imposed had the offender not pleaded guilty. A reduction of the sentence which would have been imposed may be made having regard to the time at which the offender pleaded guilty or informed the relevant law enforcement agency of their intention to plead guilty.26 A court that does not reduce the sentence imposed on an offender who pleaded guilty must state that fact in open court, and its reasons for not reducing the sentence.27
[19] In R v CCR,28 this Court said that although s 13 of the Penalties and Sentences Act does not require a sentencing judge to state in the sentencing reasons the extent of the reduction for the plea of guilty, a practical consequence of the requirements of s 13 is that the judge must form an opinion of the sentence which would have been imposed but for the plea of guilty. The Court noted that the considerations which are relevant to a judge’s decision to reduce a sentence on this ground come from the common law.29
[20] In Siganto v The Queen,30 Gleeson CJ, Gummow, Hayne and Callinan JJ said:
‘[A] plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case. It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence.’
[21] In Cameron v The Queen,31 after quoting that passage from Siganto, Gaudron, Gummow and Callinan JJ further explained the rationale for the common law rule that a plea of guilty may be taken into account in mitigation as follows:
‘Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.’
[22] When a judge fixes the minimum term before a prisoner is to be considered for release on parole, the judge is making a judicial determination that the circumstances of the offending require the offender to serve no less than that minimum term without the opportunity for parole.32 Setting a parole eligibility date at an earlier date than that on which an offender would otherwise become eligible is treated as a reduction of the offender’s sentence for the purposes of s 13 of the Penalties and Sentences Act.33 That conceptual treatment depends upon the assumption that so proceeding will in fact produce an ameliorating effect on the sentence which would otherwise apply.34
[23] In R v CCR, the Court acknowledged that the extent of the reduction of a sentence for a plea of guilty is frequently a reduction of the non-parole period by a third.35 As was there noted, in R v Ungvari,36 White JA (McMurdo P and Muir JA agreeing) said that:
‘As a matter of general practice in this jurisdiction, the one- third mark of the sentence of imprisonment is seen as an appropriate starting point to recognise a plea of guilty.’
[24] Of course, there is no hard and fast rule that this must be the reduction.37 But as was said in R v CCR:38
‘The frequent application of that degree of discount reflects the value which is ordinarily attributed to the mitigating factors which are the basis for this rule.’”
Plea of guilty can be recognised in other ways
In Pamtoonda v Commissioner of Police [2021] QDC 207, Judge Fantin considered an appeal from a sentencing decision in which the parole release date was set at the half way point, rather than after one-third.
As her Honour correctly observed (at [54]):
“The law does not require that in every sentence mitigating circumstances must be reflected by moderation of the time which an offender will have to serve before being released on, or eligible for, parole. Reduction of the minimum parole period is simply one means by which a sentence may be moderated to allow for mitigating circumstances such as timely pleas of guilty. Others are reduction of both the head sentence and the parole eligibility or release period, or a reduction of the head sentence only.”
In the particular case her Honour was concerned with, the Magistrate had “used the Nagy39 methodology” – that is, to fix a sentence for the most serious offence, which is higher than that which would have been fixed had it stood alone, to take account of the overall criminality, with the remaining sentences to be concurrent (rather than adding the sentences for each offence together). That had the added benefit for the offender of enabling the Magistrate to arrive at a sentence of three years, which in turn meant that he could have the certainty of a parole release date. The head sentence was fixed taking into account the offender’s pleas of guilty. In those circumstances, and given that apart from his plea of guilty, the offender otherwise had few mitigating factors in his favour (he was 28, with an appalling criminal history, had substance abuse problems and a strong risk of reoffending), Judge Fantin rejected an argument that the sentence was manifestly excessive.
A broader principle that this case demonstrates, that has been addressed by the Court of Appeal on a number of occasions, is that care must be taken, in reducing the penalty to be imposed because of a guilty plea, not to give an impermissible “double benefit”. This might be the case, for example, where the head sentence has already been significantly reduced, on account of the plea of guilty and other mitigating factors, and then there is added a reduction of the time to serve before parole eligibility.40
Sentencing court must state in open court that it took account of the guilty plea in determining the sentence imposed
Section 13(3) of the Penalties and Sentences Act 1992 provides that:
“When imposing the sentence, the court must state in open court that it took account of the guilty plea in determining the sentence imposed.”
Failure to comply with that is not necessarily fatal on an appeal – but it is an important requirement, and it is better to comply with it than leave it to chance that an appellate court will find it didn’t matter in a particular case.
Why it matters was explained by Fraser JA in R v Safi [2015] QCA 13 at [15]-[16].
“[15] …I would accept that the sentencing judge did not state in open court that the applicant’s pleas of guilty were taken into account in imposing sentence. The sentencing judge did recite that the applicant had pleaded guilty to the two counts of trafficking but the sentencing judge did not state that he had taken those pleas of guilty into account in imposing sentence. The sentencing judge therefore did not comply with the obligation imposed by s 13(3) of the Penalties and Sentences Act 1992 …
[16] The question in this application is not whether there was such a non-compliance but what were the consequences of that non- compliance. I accept that the obligation imposed by s 13(3) is important. Where leniency is afforded on account of a plea of guilty, a statement to that effect serves the particularly important purpose of informing offenders of that fact. The publicity given to such statements encourages guilty offenders to plead guilty, thereby saving victims and witnesses of offences the trauma, disruption, and expense which may be involved in giving evidence and it saves the State the expense of prosecuting offences. Where it is evident that the guilty plea was in fact taken into account, however, those considerations will not necessarily justify the Court in reviewing a sentence merely because the sentencing judge did not clearly state that the plea was taken into account. The applicant relied upon the Court’s observation in R v Mallon [1997] QCA 58 that one result of failure of a sentencing court to make the required statement in open court will be to “place the imposed sentence in jeopardy.” That observation does not suggest that a non- compliance inevitably must result in the sentence being reviewed in all cases. That such a noncompliance may not always require review of the sentence is also consistent with the Court’s immediately following observation that a non-compliance “will cause the Appeal Court to examine [the sentence] closely since it will not clearly appear that the court has in fact taken the plea into account.” In this case I would conclude that the non-compliance does not justify review of the sentence because, despite the non- compliance, it is quite clear that that the sentencing judge did take the guilty pleas into account in formulating the sentence. My conclusion that the sentencing judge took the guilty pleas into account in formulating the sentence is supported by the sentencing judge’s observation that the applicant had pleaded guilty, the circumstance that all of the comparable sentences to which the sentencing judge was referred, and which the sentencing judge cited, were imposed upon pleas of guilty, the circumstance that the sentence imposed by the sentencing judge was within the range of sentences suggested by those decisions, and the inherent unlikelihood that this basic principle was overlooked.”
A more recent case in which the Court of Appeal formed a different view, where the sentencing judge did not expressly acknowledge the pleas of guilty in their remarks, is R v Bassi [2021] QCA 250. The sentencing judge imposed a head sentence of three years imprisonment, and fixed a date for parole release after one-third of that sentence – consistent with the usual practice on a plea of guilty. But in circumstances where there were extensive submissions made, and material, about remorse and rehabilitation, and the Crown had put up a comparative case in which the sentence was less than was imposed in Bassi’s case, the Court of Appeal held the failure to comply with s 13(3) was a material error because “whether, and how, the plea was taken into account is not apparent from” the sentencing remarks (at [26]).
No doubt you all have some kind of basic script you use, at least as an outline for sentencing remarks. I have a fairly automatic start to my sentencing remarks – ingrained in my brain after delivering many of them – which goes something like:
“[Name of defendant], you are to be sentenced for [list offences]. You have pleaded guilty to those offences before me today [or state when if it was earlier], and I am taking your pleas of guilty into account, in your favour, in reducing the penalty that otherwise would have been imposed on you. By entering those pleas of guilty, you have taken responsibility for your actions and shown a willingness to assist the course of justice. [In an appropriate case, I might form the view that the pleas are also an indication of remorse and, if so, add reference to this.]
I will then also explain, at the end, whether I have factored the plea of guilty into account in arriving at the head sentence (or not), and then how it has been factored into account at the “bottom” of the sentence.
Bassi is a timely reminder of the importance spelling this out, even if you might think that the structure of your sentence should make it apparent the guilty plea was taken into account.
Expert evidence tendered at sentencing hearings
R v Bassi [2021] QCA 250 also dealt with the somewhat vexed topic of psychologists’ reports sought to be tendered on sentencing hearings. I say “somewhat vexed” because:
(a) sometimes, such reports can appear to really be a “statement” from the defendant, taken by the psychologist rather than by the defendant’s solicitor – at considerable cost, and at times causing delay in setting the matter down for a hearing – rather than an expression of opinion by the psychologist; and
(b) there are differing views as to the admissibility of an opinion expressed by a psychologist as to diagnosis of a medical condition.
However, as to the latter point, R v Bassi is authority for the proposition that such a report may be admissible as expert opinion, depending “entirely upon the result of the application of the established principles for the determination of the admissibility of expert evidence and the admissibility of such evidence is a question of fact” (at [61]). The principles are summarised at [51]-[54], by reference, among others, to Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [41].
And as to the former point, the Court in R v Bassi emphasised that in Queensland, as in other jurisdictions, sentencing judges rely on hearsay evidence and assertions from the bar table in order to sentence offenders, referring to s 132C of the Evidence Act 1977, which provides:
“132C Fact finding on sentencing
(1) This section applies to any sentencing procedure in a criminal proceeding.
(2) The sentencing judge or magistrate may act on an allegation of fact that is admitted or not challenged.
(3) If an allegation of fact is not admitted or is challenged, the sentencing judge or magistrate may act on the allegation if the judge or magistrate is satisfied on the balance of probabilities that the allegation is true.
(4) For subsection (3), the degree of satisfaction required varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true.
(5) In this section—
allegation of fact includes the following—
(a) information under the Penalties and Sentences Act 1992, section 15 or evidence given at a hearing in relation to an order under part 3A of that Act;
(b) information under the Youth Justice Act 1992, section 150(4A) or in a pre-sentence report under section 151 of that Act;
(c) information given to the court under the Penalties and Sentences Act 1992, section 179K;
(d) other information or evidence.”
The Court also referred to s 15(1) of the Penalties and Sentences Act 1992, which provides:
“In imposing a sentence on an offender, a court may receive any information, including a report mentioned in the Corrective Services Act 2006, section 344, or a sentencing submission made by a party to the proceedings, that it considers appropriate to enable it to impose the proper sentence.”
The Court in Bassi then said, at [72]:
“In sentencing an offender, a judge has to make findings of fact about a variety of matters including findings about the offender’s personal circumstances. While particular rules may have to be applied when facts are disputed,41 if a submission is advanced in mitigation about an offender’s personal circumstances and if the asserted facts are not disputed by the Crown, and the offender is not put on notice by some means that the facts put forward in mitigation might not be accepted, an offender is entitled to assume that a sentencing judge will accept the factual submission at face value unless the judge indicates otherwise.”
The Court held that there were undisputed facts contained in the psychologist’s report that were relevant to the sentence, including as to the offender’s personal circumstances, his drug dependency (which was also relevant to the maximum penalty applicable), that a previously diagnosed condition of ADHD was causatively linked to his drug dependence, and his prospects of rehabilitation. The Court found it was an error to reject the tender of the psychologist’s report as inadmissible.
Intoxication and mental health as sentencing considerations
As Kelly J recently observed, in R v Adam [2022] QCA 41, “[i]n contemporary society, [intoxication and mental health conditions] are commonly part of the narrative of offending”.
In Adam, Kelly J (with whom Sofronoff P and Mullins JA agreed) considered the authorities in relation to voluntary intoxication, leading to the enactment of s 9(9A) of the Penalties and Sentences Act, which provides that “[v]oluntary intoxication of an offender by alcohol or drugs is not a mitigating factor for a court to have regard to in sentencing the offender”. However, the Court emphasised the continuing authority of R v Rosenberger; Ex parte Attorney-General (Qld) [1995] 1 Qd R 677; [1994] QCA 488, to the effect that, in an exceptional case, there may be some other matter or feature which wholly or partly excuses the voluntary taking of alcohol or drugs, which matter or feature might be treated as a circumstance going in mitigation (see at [26], [29], [30], [31], [33]). Examples given include where a chronic and painful medical condition is the cause of the alcohol addiction that resulted in voluntary intoxication;42 or where the intoxication is attributable to a mental disorder.43
As Kelly J said, at [40]:
“Kevich, Clark and BCX are all examples of cases where a voluntary drunk or stupefied offender received mitigation because their offending was not solely the consequence of voluntary intoxication or stupefaction. In Kevich, there was a causal connection between the offending and the painful effects of a physical disease, Crohn’s disease. In Clark, there was a causal connection between the offending and the impairing effects of bipolar disorder. In BCX, there was a causal connection between the offending and an underlying autistic spectrum disorder and a depressive disorder characterised by severe anxiety. The affording of mitigation in these types of cases is not inconsistent with the intended operation of s 9(9A) of the Act. However, it should be observed that the causal link or connection between the offending and the matter which is something other than voluntary intoxication or stupefaction, is required to be established by the evidence.44 Where the matter comprises a mental impairment or disorder, the diagnosis of a condition is only the beginning, not the end of the enquiry.45”
His Honour then went on to summarise (at [41]-[45]) the legal principles which apply in relation to consideration of a mental disorder short of insanity, by reference to R v Tsiaras [1996] 1 VR 398, R v Verdins (2007) 16 VR 269 and R v Goodger [2009] QCA 377.
You would be familiar with these principles, but it may be helpful to set them out here.
In Verdins (at 274), the Court said that:
“Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment”
And in terms of how “impaired mental functioning at the time of the offending may reduce the offender’s moral culpability”, the Court in Verdins (at 275) said this could be the case if it had the effect of:
“(a) impairing the offender’s ability to exercise appropriate judgment;
(b) impairing the offender’s ability to make calm and rational choices, or to think clearly;
(c) making the offender disinhibited;
(d) impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(e) obscuring the intent to commit the offence; or
(f) contributing (causally) to the commission of the offence.”
The offender in Adam was convicted of dangerous operation of a vehicle causing grievous bodily harm while intoxicated. On the particular facts in Adam, it was not established that the offender’s state of intoxication on the day of his offending, which was found to be voluntary, had been caused by his mental conditions (personality disorders). There was evidence of a psychologist that, at least historically, the presence of personality disorders was the substantive cause of the offender’s use of drugs and alcohol, from the age of 15, in self medicating to manage the resultant depression and anxiety (at [48]). However, the Court found, the psychologist’s report did not express a clear or cogent opinion about whether any mental conditions had caused the offending. That is, whilst the psychologist expressed the opinion that the offending was “due to significant levels of inebriation”, he did not specifically address what had caused the offender to be intoxicated on the night of the offending (at [49]).
This case emphasises the importance of paying careful attention to the evidence, for example as contained in a psychologist’s report, when considering a submission in mitigation on the basis of a mental health condition; particularly so, where there is also voluntary intoxication, having regard to s 9(9A).
Factual basis for sentence – information or submissions for sentence
Following on from the last two points, it is useful to remember the principles that apply on a sentencing hearing, in terms of information provided or allegations made, even where there is no challenge from the opposing party. This matter was addressed in R v Field [2017] QCA 188 at [36]-[48]. It was also addressed more recently, in R v RBE [2021] QCA 146.
The reasons of Burns J (with whom Morrison and McMurdo JJA agreed) in R v RBE include the following helpful summary of the principles:
“[22] Section 15 of the Penalties and Sentences Act 1992 (Qld) provides that, in imposing a sentence, a court may receive any information, or a sentencing submission made by a party to the proceeding, that the court considers appropriate to enable it to impose a proper sentence. As such, a sentencing court is not constrained by the rules of evidence. It is a matter for the judge to decide what information or submissions it receives and, if accepted as reliable, the weight to be attached. This provision enshrines the long- standing practice of the courts to permit considerable flexibility in the presentation of evidence and other information to a sentencing court. However, the essential character of sentence hearings is accusatorial: Strbak v The Queen (2020) 267 CLR 494, [31]-[32]. Accordingly, where some aspect of the ‘information’ (or what is submitted by way of allegation) is disputed by the offender, it is for the prosecution to prove all matters of fact on which it relies that are adverse to the interests of the offender: R v Olbrich (1999) 199 CLR 270, [27]; Strbak, [32]. At common law, proof of such facts is required to the criminal standard but, in Queensland, the common law is modified by s 132C of the Evidence Act. It is in these terms [see s 132C set out above].
[23] It is to be observed that s 132C is concerned with allegations of fact, the onus of proof of which necessarily rests with the prosecution: R v Carrall [2018] QCA 355, [9]. The sentencing judge may act on an allegation of fact that is admitted or not challenged, but he or she is not obliged to do so. Where an allegation of fact is not admitted or is challenged, the judge may act on the allegation if satisfied on the balance of probabilities that it is true and the degree of satisfaction required in that regard varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true. Indeed, the required degree of satisfaction may be high where proof of the disputed fact carries with it significant consequences for the offender’s sentence: R v Ta [2019] QCA 53, [12]-[13]; R v Cumner [2020] QCA 54, [53]. Furthermore, s 132C is not merely concerned with the presentation by the prosecution of the primary facts; it also governs the making of an allegation based on any inferences that are alleged to arise from those facts (such as motive). Importantly, information advanced to a sentencing court (through the medium of an agreed statement of facts or otherwise) does not suddenly become a factual repository for the court to make of it what it will. It is for the prosecution to allege what is to be inferred and, where that allegation is not admitted or challenged by the offender, it is for the sentencing judge to decide whether such an inference should be accepted.
[24] In the case of submissions made on behalf of an offender, a sentencing judge is likewise not obliged to accept defence assertions from the bar table, even if no evidence is led by the prosecution to the contrary and even if the prosecution makes no submission about the matter: Olbrich, [25]; R v Galeano [2013] 2 Qd R 464, [46]. Of course, if the judge is inclined to reject such an assertion, that inclination must be made known to the offender who must be given a reasonable opportunity to make good that which has been asserted: R v Field [2017] QCA 188, [48]. That said, in cases where differing versions of relevant events have like probability then the version most favourable to the offender should be accepted: R v Welsh [1983] 1 Qd R 592, 595; Field, [39].” [underlining added]
You cannot suspend a sentence that does not start until a date in the future
This point was made in a recent decision of the Chief Judge in Hemmett v Commissioner of Police [2021] QDC 318 at [19]-[21] where his Honour said:
“[19] A court cannot, in my opinion, suspend a future sentence. Section 156A provides that in certain circumstances a sentence must be ordered to be served cumulatively with any other term of imprisonment the offender is liable to serve. A cumulative order means the imprisonment is directed to start from the end of a period of imprisonment the offender is serving, or has been sentenced to serve: PSA s 156.
[20] Section 144 of the PSA provides that a court may order that a term of imprisonment be suspended:
‘(1) If a court sentences an offender to imprisonment for 5 years or less, it may order that the term of imprisonment be suspended.
(2) An order under subsection (1) may be made only if the court is satisfied that it is appropriate to do so in the circumstances.
(3) An order under subsection (1) may suspend the whole or a part of the term of imprisonment.
(4) A court must not suspend a term of imprisonment if it is satisfied, having regard to the provisions of this Act, that it would be appropriate in the circumstances that the offender be imprisoned for the term of imprisonment imposed.
(5) The court must state an operational period during which the offender must not commit another offence punishable by imprisonment if the offender is to avoid being dealt with under section 146 for the suspended sentence.
(6) The operational period starts on the day the order is made and must be—
(a) not less than the term of imprisonment imposed; and
(b) not more than 5 years.’ (emphasis added)
[21] Because subs (3) provides that a court may suspend part of a term, it follows that the suspension may take effect immediately, or at a date after the sentence order was made. In either case, the operational period commences on the day the order is made. It is incongruous that an operational period could run before a sentence has commenced.
[22] It would be inconsistent with the scheme of the Act to purport to delay the start of a suspended sentence because the operational period commences on the day the order is made. The liability to serve the sentence is immediate and continues through the operational period, although contingent on an order being made under s 147 of the PSA upon breach.
As far as I am aware, that point has not yet been considered by the Court of Appeal. I share the Chief Judge’s view of the effect of s 144.
Section 156A – when a later sentence must be ordered to be served cumulatively
In Hemmett v Commissioner of Police [2021] QDC 318 the Chief Judge also dealt with an argument that, in the circumstances of that case, s 156A did not apply, because at the date of sentence, in circumstances where the offender’s parole was only suspended, not cancelled, he was not (then) liable to serve the (previous) term of imprisonment.
Section 156A of the Penalties and Sentences Act 1992 provides:
“156A Cumulative order of imprisonment must be made in particular circumstances
(1) This section applies if an offender—
(a) is convicted of an offence—
(i) against a provision mentioned in schedule 1;46 or
(ii) of counselling or procuring the commission of, or attempting or conspiring to commit, an offence against a provision mentioned in schedule 1; and
(b) ommitted the offence while—
(i) a prisoner serving a term of imprisonment; or
(ii) released on post-prison community based release under the Corrective Services Act 2000 or released on parole under the Corrective Services Act 2006; or
(iii) on leave of absence, from a term of imprisonment, granted under the Corrective Services Act 2000 or the Corrective Services Act 2006; or
(iv) at large after escaping from lawful custody under a sentence of imprisonment.
(2) A sentence of imprisonment imposed for the offence must be ordered to be served cumulatively with any other term of imprisonment the offender is liable to serve.”
The Chief Judge rejected the argument, describing it as flawed. In a succinct statement, after referring to the definitions of “liable” and “offence” in the Criminal Code, to s 153 (liability to imprisonment) and the definition of “term of imprisonment” in s 4 of the Penalties and Sentences Act 1992, and to ss 214 and 215 of the Corrective Services Act 2006,47 the Chief Judge said:
“[30] These provisions suggest a person is liable to punishment upon commission of an offence. More particularly, a person is liable to serve a term of imprisonment upon being convicted and sentenced to a term of imprisonment. Liability to serve the term continues until it is served. A person is taken to be serving the sentence while on parole. The sentence is served if the parole expires without being cancelled.
[31] It is enough to say that person on parole, even if the parole is suspended, is liable to serve the sentence.”
Utility of short terms of imprisonment
This is a tricky issue. In R v Rogan [2021] QCA 269, the Court of Appeal upheld an appeal against a sentence (imposed for one count of indecent assault) of 12 months, ordered to be suspended for an operational period of two years after the applicant had served two months. The circumstances of the offence are set out at [2] of the decision and involve a persistent sexual assault, which the Court acknowledged would have been shocking, distressing, revolting and frightening for the victim of it (at [4]). The Court of Appeal found that the sentencing judge’s conclusion that the seriousness of the offending called for a period of actual custody was incorrect. Relevant to that conclusion was the fact that the offender in that case was 36 years of age, had no criminal history, the offending was “wholly uncharacteristic” for him, and he was otherwise a person of good character with a good work history. The Court accepted there was evidence of real remorse, acknowledgment of wrongdoing and insight, as well as a timely plea of guilty (at [19]). That finding in relation to remorse was an important counterweight, the Court found, to the considerations of denunciation having regard to the seriousness of the offending which led the sentencing judge to impose a period of actual imprisonment (at [18]).
Sofronoff P, giving the reasons of the Court (McMurdo JA and Williams J agreeing) observed at [16]-[17] that:
“A very short term of imprisonment can have large effects. Apart from the stigma which imprisonment carries, it may affect present and future employment, housing arrangements and all kinds of financial arrangements. The effects of prison extend to whatever experiences are undergone in prison, which may occur even within a short period.
Consequently, the imposition of a very short term of imprisonment is not just a matter of the loss of liberty for a particular period.”
This is a tricky issue, among other things, because of s 9(4)(c) of the Penalties and Sentences Act, which provides that in sentencing an offender for an offence of a sexual nature committed in relation to a child under 16 or a child exploitation material offence, “the offender must serve an actual term of imprisonment, unless there are exceptional circumstances”.
Plainly, each case will depend on its own facts. But as this case demonstrates, careful consideration must be given before making a sentencing order which involves such a short period of time in custody.
Need to consider the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld)
In R v Nona [2022] QCA 26, the Court of Appeal considered a challenge to a sentence imposed for one count of attempted indecent dealing (three months’ imprisonment, wholly suspended) which had the effect of triggering the reporting obligation under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld). The conviction followed a trial, at which the offender was acquitted of an additional count of rape. The appeal against conviction was dismissed.
The effect of s 5 of the Reporting Act is that a person convicted of a reportable offence (see s 9) becomes a reportable offender unless a term of imprisonment was not included in the sentence and no conviction was recorded.
The Court of Appeal first considered whether the sentence of three months’ imprisonment, wholly suspended, was manifestly excessive; concluding that it was not. As Henry J said, at [66], whilst the offence was a single attempt and the offender had not offended similarly before, the circumstances of the case told against a more generous outcome than the short wholly suspended sentence which was imposed. The offender was 47 and the complainant was only 13 and in his care at the time. Although the offender had not previously received a sentence of imprisonment, many convictions had previously been recorded against him. Because he went to trial, he did not have the mitigatory advantage of a plea of guilty.
Further, the Court also held that the fact that the sentence triggered the reporting obligation did not render it manifestly excessive either. The members of the Court (Bond JA, Boddice J and Henry J) expressed slightly differing views as to whether the consequence of the sentence – the triggering of the reporting obligation – was a material consideration in the exercise of the discretion. Bond JA considered that it was, as part of the integrated process involving consideration of all the circumstances of the case (at [4(a)]). Boddice J (at [8]) considered that, in the circumstances of that particular case, the reporting consequence could not form any basis to conclude the sentence of imprisonment was manifestly excessive. Henry J (at [88]) was of the view that the consequence could not have carried any material weight in the circumstances of that case because:
“The option of suspending a term of imprisonment only arises under s 144 Penalties and Sentences Act ‘if’ the court sentences the offender to imprisonment (for five years or less). If the circumstances of the case are sufficiently serious to warrant a term of imprisonment it is inherently unlikely such serious circumstances would be outweighed merely by the consequence that such a sentence will trigger the application of the Reporting Act’s reporting regime. As found above, the circumstances here were sufficiently serious for the learned sentencing judge to legitimately conclude a sentence of imprisonment was appropriate, albeit that it was suspended. That the applicant would consequently have to suffer the impact of the reporting regime could not of itself have made a material difference to such a conclusion. However, no additional information, unique to the applicant’s circumstances, was advanced to demonstrate that the demands of the reporting regime would cause some out of the ordinary consequence of potential relevance to the determination of sentence.”
The reasons of Henry J at [59] also include a reminder of another relevant principle, namely that the:
“rule in R v D [1996] 1 Qd R 363; [1995] QCA 329 precludes a sentencing court from considering conduct of which the offender has not been convicted, which constitutes a separate offence from and is not part of the conduct constituting the offence being sentenced.”
Sentencing when there are no comparable decisions available to assist you
As we know, the sentencing discretion is to be exercised with the aim of reasonable consistency. As Gleeson CJ said in Wong v The Queen (2001) 207 CLR 584 at 591 [6]:
“All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.”
Reference to what has been done in other cases aids the sentencing court to achieve the aim of reasonable consistency.48
The question of the appropriate penalty to impose, when there are no comparable sentence decisions available to assist you, is a difficult one, but the process remains the same: to take into account all the relevant considerations, apply the relevant legal principles, and balance the various different and conflicting features of the case, to reach what the sentencing judge considers, in the exercise of the discretion, is the just sentence for the offence.49
The best starting point for the relevant principles is part 2 of the Penalties and Sentences Act, with which you are all familiar – commencing with s 9(1) (the purposes for which sentences may be imposed) and then s 9(2) (the things a sentencing court must have regard to), which is adapted by the subsequent sub-sections of s 9 for some categories of offence.
I would also, though, if you have time – which I know is not a given – check the Queensland Sentencing Information Service because you might find, even if the parties tell you there are no comparative decisions, that there actually are.
One example of the approach to be taken in respect of an offence for which there is no assistance yet available in terms of the appropriate penalty is Ross v Commissioner of Police [2018] QDC 99, in which Muir DCJ dealt with an appeal against the sentence imposed for “contravening order about information necessary to access information stored electronically” (s 205A of the Criminal Code) (that is, refusing to provide a PIN to access a mobile phone when required by police to do so).
In her Honour’s decision, she made reference to the maximum penalty for the (then) new offence under s 205A of the Code – 5 years imprisonment – and to the background, as explained in the relevant extrinsic material, to the inclusion of that offence in the Code. That lead her Honour to conclude that:
“the offence created under s 205A of the Criminal Code is a serious one which strikes at the heart of the administration of justice. It involves a failure to comply with a court order.50 It follows that in considering the penalty to impose, it is necessary to take into account the need for general deterrence and denunciation” (at [46]).
Her Honour accepted the Crown’s submission that the “gravamen of the offence lies in the fact that it stymies an investigation and potentially conceals more serious offending” (at [77]). Her Honour referred to R v Goodwin; ex parte Attorney General (2014) 247 A Crim R 582; [2014] QCA 345 at [37] where Mullins J (as her Honour then was) said:
“The lack of comparable sentences may deprive the sentencing judge of the assistance of ‘the yardstick’ for testing the proposed sentence, but it does not preclude the sentencing judge from otherwise finding the relevant facts for the purpose of the sentencing, weighing up the relevant factors relating to the offence and the offender, and applying the principles of sentencing found in the relevant legislation and the common law, in order to reach the appropriate sentence for that offending. The sentencing judge may very well find the exercise of the discretion to be more difficult, in the absence of, and without the usual assistance afforded by, comparable sentences, but as a matter of principle the sentencing judge will have available sufficient material from the evidence adduced on the sentence and the relevant law to undertake the well defined process of sentencing.”
As Muir DCJ said, at [81], “the key to resolving this question, as Sofronoff P reiterated recently in R v Kelley,51 lies in the proper characterisation of the offending conduct, the impact of the appellant’s age and criminal history and any other matter comprehended within s 9(2) of the PSA”. Considering those factors, in the context of the particular offence, her Honour concluded the sentence of 12 months imprisonment, wholly suspended, imposed at first instance, was not manifestly excessive (see at [83]-[89]).
That decision was upheld by the Court of Appeal: Ross v Commissioner of Police [2019] QCA 96. An aspect of the appellant’s argument on the appeal was that the courts below ought to have embarked on a fact-finding exercise to determine the level of criminality on the part of the offender (in simple terms, what was he actually hiding) which, it was said, ought to have then been reflected in the penalty. The Court of Appeal (Wilson J, Gotterson and McMurdo JJA agreeing) and rejected that argument. The Court confirmed (at [43]) that:
“The gravamen of a section 205A Criminal Code offence lies in the fact that it stymies an investigation and potentially conceals more serious offending,52 and has the potential to deflect a police investigation into potentially very serious offences.53”
The Court further said that:
“[49] In this case, the level of criminality was unknown to the court because the applicant refused to provide the access information and no submissions were made on his behalf about the reasons why he refused to do so. The learned Magistrate is not expected, in these circumstances, to embark upon a fact-finding investigation to determine the level of criminality hidden by the applicant’s refusal to comply with the Access Order.
[50] The learned District Court judge was correct to find that the criminality of this offence was simply that the applicant was hiding something and that, as with the offence generally, there was the potential for it to be a serious offence. No further specific finding could be made in the absence of submissions from either the police prosecutor or the applicant’s solicitor.
[51] It was not necessary for the learned Magistrate to have gone one step further and find, as a relevant fact, what the potential criminality was and what a court could rationally conclude was the level of seriousness of the offence(s), or potential offence(s), being withheld.
[52] There may be occasions where submissions are made by the prosecution or the defendant’s representative which may mitigate or aggravate a refusal to comply with an order for access information. These matters may be taken into account54 and if contested then the usual fact-finding process pursuant to section 132C of the Evidence Act can be undertaken.”
The Court of Appeal otherwise rejected the argument that the sentence was manifestly excessive. In that context, acknowledging there were (then) not decisions from the Queensland Court of Appeal in relation to the offence under s 205A, Wilson J made reference to decisions in Western Australia in relation to a similar offence (at [59]-[62]), and to sentences from Queensland in relation to other offences involving conduct contrary to the administration of justice or in defiance of court orders (at [63]).
Interestingly, if you now go to QSIS, and look for the statistics from the Magistrates Court about this offence under s 205A, you can see there are 151 cases. In just over 30% of those, a sentence of imprisonment was imposed. In 44% a wholly suspended term of imprisonment was imposed and in 10% a fine was imposed. The statistics for the District Court show that there have been eight matters of this kind dealt with, and the statistics are fairly consistent – 37.5% involved a penalty of actual imprisonment; 50% involved wholly suspended terms.
Another example that I understand may be of particular relevance to you is the offence of “habitually consorting with recognised offenders” (s 77B of the Criminal Code). I can see from QSIS that in the last four years, only three of these cases have been dealt with in the Magistrates Court. In one, a recognisance order was made (with no conviction recorded), in another a fine was ordered and in the third a sentence of imprisonment of, I think, six months was imposed. There are no decisions from the District Court or Supreme Court in relation to that offence.
So, in terms of how to deal with that offence, the approach adopted by Muir DCJ in Ross is a good roadmap.
Section 77B of the Code provides as follows:
“77B Habitually consorting with recognised offenders
(1) A person commits a misdemeanour if—
(a) the person habitually consorts with at least 2 recognised offenders, whether together or separately; and
(b) at least 1 occasion on which the person consorts with each recognised offender mentioned in paragraph (a) happens after the person has been given an official warning for consorting in relation to the offender.
Maximum penalty—300 penalty units or 3 years imprisonment.
(2) For subsection (1), a person does not habitually consort with a recognised offender unless the person consorts with the offender on at least 2 occasions.
(3) This section does not apply to a child.
(4) In this section—
official warning, for consorting, see the Police Powers and Responsibilities Act 2000, section 53BAA.
That provision was enacted, as part of a new part 2, chapter 9A (consorting), by s 141 of the Serious and Organised Crime Legislation Amendment Act 2016.
The Explanatory Notes to the Bill which became that Act explain that the “new consorting offence and the new Organised Crime Control Orders are intended to replace the anti- association offence (section 60A)” and also includes the following (at p 10):55
“The Bill reflects, in-principle, Taskforce recommendation 18 by providing for a new offence of habitually consorting with recognised offenders. The Taskforce majority recommended that the anti-association offence (section 60A) be replaced with a temporary consorting offence as it would provide a more constitutionally robust, fairer, efficient and effective approach as compared to the 2013 anti-association offence (see pages 194-195 of the Taskforce Report).
The consorting offence in the Bill includes many of the elements from the model offence recommended by the Taskforce majority; and is also based on the equivalent offence in New South Wales (NSW) under section 93X of the Crimes Act 1900 (NSW).
The Bill provides that it will be a misdemeanour (i.e. an indictable offence) for a person to consort with two recognised offenders after having been given an official warning by police with respect to each of those individuals. The offence carries a maximum penalty of three years imprisonment or 300 penalty units, or both.
The offence under the Bill does not apply to persons under the age of 18, and is framed to reflect the Government’s intention that the consorting offence be targeted at disrupting the type of consorting that facilitates and enables serious and organised criminal activity.
A ‘recognised offender’ for the purposes of this offence is a person, aged 18 years or over, who has a recorded conviction for an indictable offence punishable by a maximum penalty of at least five years imprisonment and other prescribed offences that may be associated with serious and organised crime (which carry maximum penalties less than five years imprisonment). Unrecorded convictions and convictions that have become ‘spent’ under the Criminal Law (Rehabilitation of Offenders) Act 1986 are excluded from the definition of ‘recognised offender’.
A person consorts with another person if they associate with the person in a way that involves seeking out or accepting the other person’s company. This definition reflects the comments of his Honour Justice Keane (paragraphs 205-206) in Tajjour v NSW (2014) 313 ALR 221 in his examination of the NSW consorting offence. This means that random social interactions that occur in the course of daily life (e.g. purchasing stamps at the post office or a bus ticket from a bus driver) will not amount to acts of consorting that are captured by the offence in the Bill. For an act of consorting to be captured there needs to be an intentional seeking out of a personal social relationship with another person.”
From that, there are three places to look for some assistance:
(a) sentencing decisions in relation to s 60A – a reference to QSIS reveals none in the District or Supreme Courts, and only 4 in the Magistrates Court;
(b) sentencing decisions in relation to s 93X of the Crimes Act 1900 (NSW) – a quick search of Casebase reveals only one decision, other than Tajjour, dealing in substance with the offence under s 93X of the NSW Crimes Act. That is Forster v Director of Public Prosecutions [2017] NSWSC 458, an appeal against a conviction for consorting – not of assistance in the context of the present sentencing discussion, but definitely a useful decision to have regard to if you need to consider the elements of the offence;56 and the decision of Keane J in Tajjour v NSW (2014) 313 ALR 221. Tajjour involved a challenge to the validity of the legislation, which was unsuccessful. Again, not of assistance on the question of sentencing, but definitely of assistance if you have a contested matter.
I had one last go – on Austlii – to see if I could find any assistance on sentencing for the NSW equivalent, but there was none.
So, you would start with the nature of the offence, and the maximum penalty (3 years imprisonment). You would then turn to the guidelines under s 9(2), and work through those – by reference to the particular factual circumstances of the offending, and the offender, before you. In the end, you can only do your best in terms of applying the relevant principles and taking all the relevant factors into account, and as can be seen with the “refusing to provide a PIN” case, development of the law will follow, as someone elects to appeal, and that gives the District Court and the Court of Appeal the opportunity to consider the matter and provide some guidance.
The parity principle
I will finish with a decision just handed down a couple of days ago, R v Smith [2022] QCA 89, in which the Court of Appeal considered, among other things, the parity principle.
The principle is discussed in the reasons of Applegarth J at [66]-[74] (with which Morrison JA, at [2], and Bond JA (at [15]) agreed):
“[66] The parity principle is an aspect of the principles of equal justice.
[67] Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them.
[68] If other things are equal, persons who have been parties to the same offence or have committed offences arising out of the same criminal enterprise should receive the same sentence. Other things, however, are rarely equal. Matters such as age, background, criminal history, general character and the part that each offender played in the relevant criminal conduct or enterprise have to be taken into account.
[69] In the case of co-offenders, different sentences may reflect their different circumstances or their different roles in the relevant criminal activity. An appeal court will not intervene when the disparity in sentence is justified by relevant differences.
[70] The parity principle is not applied to increase what would otherwise be an appropriate sentence so as to avoid a previously-sentenced offender feeling a justified sense of grievance. The parity principle is only relevant where a sentence might be such as to engender a justifiable sense of grievance in the offender being sentenced.
[71] The sense of grievance necessary to attract appellate intervention is to be assessed by objective criteria.
[72] The parity principle will be engaged if the challenged sentence is disproportionately higher than a sentence that has already been imposed on a co-offender.
[73] A proper comparison of sentences in order to determine if the principles of equal justice (including the parity principle) have been applied involves a consideration of all components of the sentences, not simply the head sentences. Consideration should include the non-parole periods.
[74] If, after having regard to all components of the sentences, the circumstances of the offenders and the part each played in the relevant criminal conduct or enterprise, there is an unjustified disparity between sentences, then the relevant sentence should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.” [references omitted]
In that case, there were two co-offenders involved in a significant drug trafficking business. One (the applicant for leave to appeal) was sentenced to 10 years’ imprisonment, resulting in an automatic Serious Violent Offence declaration and the requirement to serve 80% before being eligible for parole; the other, who was the applicant’s subordinate in the business, was sentenced to 9 years, with eligibility for parole after 3 years. Although the applicant did not contend that 10 years was manifestly excessive, the argument on the appeal was that the sentence breached the parity principle because she would be required to serve five more years than her co-offender, before being eligible for parole, which was a “disparity not justified by the differences in the culpability or circumstances of the two co-offenders”.
That argument was rejected by the Court of Appeal, in essence, because whilst the difference at the “bottom” of the sentence may seem excessive, the difference in the head sentences (only 1 year) might be considered inadequate, as not reflecting the significant differences in culpability of each offender, and their personal circumstances (including a considerable difference in age between the applicant and the subordinate co-offender). Absent the plea of guilty, the Court considered the applicant could have expected a sentence considerably higher than 10 years. The reduction to 10 years gave proper consideration to sentencing principles, including the parity principle. As Applegarth J explained, at [130] (Morrison JA (at [2]) and Bond JA at [18]) agreeing:
“Viewed in isolation, the five-year difference in their non-parole periods seems excessive. However, that difference cannot be viewed in isolation, the sentences must be looked at as a whole, and also as the products of principles and statutory provisions that govern parole eligibility dates and which necessitated their guilty pleas being taken into account ‘at the bottom’ (in the case of Cheers [the co-offender]) and ‘at the top’ (in the case of the applicant).”
Conclusion
What this survey of recent cases reveals is the complexity and ongoing development of this central and important part of your Court’s, and the Supreme and District Court’s, work. When you think about the fact that, on a daily basis, you are in some way, shape or form, applying these principles – and many others that have not been addressed here – instinctively, and in a synthesised way, to produce sentencing decisions, the vast proportion of which are never challenged by way of appeal, that is a reason to be extremely proud of the work that you collectively undertake in the service of the people of Queensland.
[1] Wong v The Queen (2001) 207 CLR 584 at 611; Markarian v The Queen (2005) 228 CLR 357 at [27] and [37].
[2] https://archive.sclqld.org.au/judgepub/2019/smith20190516.pdf.
[3] https://archive.sclqld.org.au/judgepub/2021/cash20210828.pdf.
[4] I addressed the matter of bias in the paper I presented to this conference in 2018 entitled “Reasons, restraint and reasonable apprehensions (or … what you should say, what you shouldn’t, and why it might matter)” – https://archive.sclqld.org.au/judgepub/2018/bowskill20180531.pdf.
[5] In re Hamilton; In re Forrest [1981] AC 1038, 1045.
[6] R v Cunningham [2005] QCA 321, 5.
[7] R v Kitson [2008] QCA 86, [21].
[8] R v Moodie [1999] QCA 125, 5.
[9] R v Dodd [2010] QCA 31, [13].
[10] (2017) 268 A Crim R 240, 251-252 [55]-[56]; [2017] QCA 164.
[11] [2014] QCA 206.
[12] (2015) 249 A Crim R 176; [2015] QCA 27.
[13] (2020) 4 QR 110; [2020] QCA 60 at [9]-[15].
[14] [2021] QCA 278 at [215]-[233].
[15] (1997) 189 CLR 295 at 307–308.
[16] (1988) 166 CLR 59 at 64-66 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).
[17] (1988) 166 CLR 59 at 66-67.
[18] (1994) 71 A Crim R 459 at 466.
[19] Section 164 of the Justice and Other Legislation Amendment Act 2020.
[20] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [70] (McHugh, Gummow, Kirby and Hayne JJ): (1998) 194 CLR 355 at 381-382.
[21] A recent example is R v Ponting [2022] QCA 83.
[22] See, for example, R v Jones [1998] 1 Qd R 672; [1997] QCA 132 at 674-675.
[23] R v Stewart [2021] QSC 187 at [43]; R v Wilson [2022] QCA 18 at [33].
[24] See Attorney-General v Kanaveilomani [2015] 2 Qd R 509; [2013] QCA 404 at [12] per McMurdo P, at [58], [61] and [67] per Morrison JA and at [163] per Philippides J (as her Honour then was).
[25] See R v Kowalczyk [2021] QCA 154 at [16]-[18]. See also R v Gray [2010] QCA 161 at [12]-[14] per de Jersey CJ
[26] Penalties and Sentences Act 1992 (Qld), s 13(2).
[27] Penalties and Sentences Act 1992 (Qld), s 13(4).
[28] R v CCR [2021] QCA 119 at [15].
[29] Ibid [16].
[30] Siganto v The Queen (1998) 194 CLR 656, 663-664 [22].
[31] Cameron v The Queen (2002) 209 CLR 339, 343 [14].
[32] Crump v New South Wales (2012) 247 CLR 1, 16-17 [28] (French CJ).
[33] R v Corrigan [1994] 2 Qd R 415; [1993] QCA 417; R v Maxfield [2002] 1 Qd R 417; [2000] QCA 320, 423 [23].
[34] R v Maxfield [2002] 1 Qd R 417; [2000] QCA 320, 423 [25].
[35] R v CCR [2021] QCA 119 [18].
[36] R v Ungvari [2010] QCA 134 [30].
[37] R v Torrens [2011] QCA 38 [25].
[38] R v CCR [2021] QCA 119 [18].
[39] R v Nagy [2004] 1 Qd R 63; [2003] QCA 175.
[40] See, for example, R v Tran; Ex parte Attorney-General (Qld) [2018] QCA 22; see also R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80; [2020] QCA 58 at [56].
[41] See eg R v Olbrich (1999) 199 CLR 270 at [24]; Strbak v The Queen (2020) 267 CLR 494.
[42] See at [33], referring to R v Kevich [1977] VicSC 619.
[43] See at [34]-[39], referring to R v Clark [2009] QCA 361 and R v BCX (2015) 255 A Crim R 456; [2015] QCA 188.
[44] See by way of example R v Walsh [2006] VSCA 87 [22]; Thompson v R (2005) 157 A Crim R 385, 396 [53] and Payne (2002) 131 A Crim R 432, 442 [36].
[45] R v Verdins (2007) 16 VR 269, 272.
[46] Schedule 1 to the Penalties and Sentences Act 1992 lists offences which are “serious violent offences” for the purposes of s 156A and also ss 161A, 161B and 161C.
[47] Section 214 provides that “A prisoner released on parole is taken to be still serving the sentence imposed on the prisoner”. Section 215 provides that “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”.
[48] Hili v The Queen (2010) 242 CLR 520 at [53]-[54]; Barbaro v The Queen (2014) 253 CLR 58 at [41].
[49] R v Goodwin; Ex parte Attorney-General (Qld) (2014) 247 A Crim R 582; [2014] QCA 345 at [5] per Fraser JA and at [35]-[37] per Mullins J (as her Honour then was), cited in R v Ponting [2022] QCA 83 at [68].
[50] In order for police to require a person to provide their PIN, an order to that effect must have been obtained, under s 154A of the Police Powers and Responsibilities Act 2000, which would usually be reflected in the search warrant.
[51] [2018] 10 QLR; [2018] QCA 18 at [40].
[52] Ross v Commissioner of Police [2018] QDC 99, [77].
[53] Ross v Commissioner of Police [2018] QDC 99, [83].
[54] See R v Field [2017] QCA 188, [38]-[40].
[55] https://www.legislation.qld.gov.au/view/pdf/bill.first.exp/bill-2016-084.
[56] Incidentally, Mr Forster was one of the three people who challenged the validity of the legislation in the High Court – Mr Tajjour and Mr Hawthorne were the other two. Forster was the first person to be charged with the offence in NSW. He pleaded guilty, and was sentenced to 12 months imprisonment, with a non- parole period of 9 months. He was subsequently allowed to traverse his plea – although had served most of that sentence. Following the proceedings in the High Court, the charge against him finally proceeded to a trial, and he was convicted and sentenced to the same penalty. It was that conviction that was overturned by the Supreme Court in the decision referred to above.
