R v Byriel [2016] QDC 43 (8 February 2016)

Last Updated: 4 March 2016

DISTRICT COURT OF QUEENSLAND

CITATION:	R v Byriel [2016] QDC 43
PARTIES:	THE QUEEN (Crown) v DYLAN ROSS BYRIEL (Defendant)
FILE NO/S:	75 of 2015
DIVISION:	Criminal
PROCEEDING:	Ruling/Sentence
ORIGINATING COURT:	Hervey Bay District Court
DELIVERED ON:	8 February 2016
DELIVERED AT:	Hervey Bay
HEARING DATE:	5 February 2016; 8 February 2016
JUDGE:	Long SC DCJ
CATCHWORDS:	CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – TIMES SPENT IN CUSTODY – where defendant is in pre-sentence custody due to suspension of parole order – whether pre-sentence custody should be declared under s 159A of the Penalties and Sentences Act 1992 – whether such a declaration is required by R v McCusker [2015] QCA 179 Penalties and Sentences Act 1992 ss 156A, 156A(3), 159A, 159A(1) and 160C Corrective Services Act 2006 ss 199, 201, 201(2)(c) and 211 Acts Interpretation Act 1954 s 14A Bail Act 1980 s 16 R v McCusker [2015] QCA 179 R v Smith (2015) 1 Qd R 323
COUNSEL:	D Kovac for the Prosecution (Office of the Director of Public Prosecutions) P F Rutledge for the Defence (instructed by Geldard Sherrington Lawyers)

[1] On 5 February 2016, the defendant entered a guilty plea to an offence of robbery with personal violence and on 8 February 2016, he was, for that offence, sentenced to a term of 2 years and 6 months imprisonment, to be served cumulatively with an existing period of 2 years and 3 months imprisonment and earlier imposed in respect of an offence of arson of a motor vehicle. A parole eligibility date was then fixed at 8 October 2016.

[2] The following paragraphs, set out the revised reasons given, on 8 February 2016, for the purpose of sentencing the defendant, and in ruling that it was not appropriate to make any declaration pursuant to s 159A(1) of the Penalties and Sentences Act 1992, in respect of any of the defendant’s pre-sentence custody, after the commission of the robbery offence on 22 July 2015 and prior to be sentenced on 8 February 2016.

[3] In this matter (and notwithstanding that due to factual complications which have been identified more latterly, there is an additional complexity in considering the issue than was first identified), a question has arisen as to whether the Court is bound to apply the decision in R v McCusker [2015] QCA 179 and thereby make a declaration pursuant to s 159A of the Penalties and Sentences Act 1992, or alternatively, as to whether the reasoning in that case should be applied so that such a declaration should be made in this case, at least in respect of part of what may be regarded as the pre-sentence custody of this defendant, prior to this sentence date.

[4] The facts giving rise to that question are that on 5 February 2016, the defendant pleaded guilty to an offence of robbery with personal violence, committed on 22 July 2015. That offence, and the circumstances of it, are serious and the defendant has a significant prior criminal history. Accordingly, the imposition of a term of imprisonment is warranted and because that term will be imposed in respect of this offence committed whilst the defendant was on parole, it will, pursuant to s 156A of the Penalties and Sentences Act, be required to be imposed cumulatively upon the defendant’s existing period of imprisonment and in respect of which he had been released on parole.

[5] On 18 September 2014, the defendant had been sentenced to a term of 2 years and 3 months imprisonment and after the declaration of 106 days of pre-sentence custody, from 5 June 2014 to the date at that sentence, his parole release date was fixed as 3 December 2014. That is, after serving about 6 months of that term.

[6] On 23 July 2015, the defendant first appeared in Court, having been charged with the offence of robbery with personal violence and his parole was then suspended, as from that day. Exhibit 8 includes a copy of the suspension notice which was executed by a person who may be presumed to be the delegate of the Chief Executive and which evidences an exercise of power pursuant to s 201(2)(c) of the Corrective Services Act 2006, upon the stated basis of the formation of a reasonable belief that:

“The prisoner poses an unacceptable risk of committing an offence, in that Mr Byriel has been charged with the offence of robbery with actual violence, armed/in company/wounded/used personal violence, allegedly committed on 22/07/2015.”

[7] As a consequence, the order made by exercise of that power, was for a suspension of parole for a period of 28 days.

[8] The further complications which have been more latterly identified, are that whilst it remains the understanding that the defendant has, except, perhaps, in one respect, remained under a suspension of his parole since 23 July 2015, in that he has been serving his previously imposed term of imprisonment in custody, the situation is complicated by understanding that after being remanded in custody in respect of the offence of robbery on the 23rd of July 2015, he was granted bail by the Court on the 27th of July 2015.

[9] The pre-sentence custody certificate, which is Exhibit 3, notes that he was re-released to parole on the 27th of July 2015 but then returned to custody under parole supervision on the next day, 28 July 2015. That appears to be entirely consistent with the order, which is included in Exhibit 8, which, on the face of it, effected a suspension of parole for 28 days from 23 June 2015. However, it is not known what further exercises of power occurred in respect of the suspension or further suspension of the defendant’s parole, subsequently.

[10] For present purposes, that largely does not matter and particularly for the purposes of ruling, in the context of this case, on the arguments that had been advanced. I simply also note that as far as this Court is aware, and in terms of the indictment presented in this Court on 18 November 2015, there are records to indicate that the defendant had been granted bail in respect of the robbery charge and that there is an undertaking as to bail which was entered into, on the 17th of September 2015, as an undertaking as to bail following committal for trial or for sentence. On the 18th of November 2015, that undertaking was enlarged and that remained the position until last Friday, the 5th of February 2016 when, albeit on a different understanding, my order adjourning the matter to today, remanded the defendant in custody in relation to this matter.

[11] The submission made for the defendant, obviously taking into account that the circumstances in which the offender in R v McCusker was held in pre-sentence custody were not precisely the same as here, was that unless it could be determined that the logical reasoning for the decision as to the application of s 159A of the Penalties and Sentences Act 1992 was inapplicable or distinguishable from the present circumstances, it should be applied. The submission, which was contested by the Prosecutor, was that it was both applicable and the circumstances relevantly indistinguishable. In the light of the additional complications relating to the granting and enlargement of bail in respect of the robbery charge, it was recognised by the defendant’s counsel that this presented a further complication in relation to the position.

[12] A starting-point is to examine the relevant circumstances that were considered by the Court of Appeal in R v McCusker. They were that the offender had been charged with the offence of murder, which was alleged to have been committed on 1 January 2012 and therefore in the operational period of the suspended sentence imposed on 22 November 2010. However, he was not charged until 3 December 2012 and prior to that, he had, in March 2012, committed break and enter offences and in respect of which he was, on 10 November 2012, sentenced to 2 years imprisonment in conjunction with the earlier suspended sentence being fully invoked and a parole release date was fixed on 10 September 2013. However, and on 16 March 2015, he was convicted, on his own plea, of manslaughter and sentenced to a term of imprisonment. By then, and on 9 February 2015, he had completed serving the period of imprisonment imposed on 10 November 2012. The issue that was considered was as to how the period served in custody from 10 September 2013 to 9 February 2015, was to be treated in sentencing the offender for manslaughter, on 16 March 2015. Because he has also been remanded in custody in respect of the charge of murder, there was no issue as to the declarability of the pre-sentence custody from 10 February 2015 to the date of sentence.

[13] In the end, it was determined that the entire period of pre-sentence custody between 10 September 2013 and 16 March 2015 was to be declared as time served under the sentence imposed, pursuant to s 159A of the Penalties and Sentences Act 1992.

[14] As to the reasoning for such a conclusion in R v McCusker, it should first be noted that after making specific reference to the terms of both s 159A of the Penalties and Sentences Act 1992 and s 199 of the Corrective Services Act 2006, it was observed that:

“[14] Here it is said that Mr McCusker was held in custody for two reasons.

One was the fact that he faced a charge of murdering Mr Dive. If that was the only reason he was being held then he was entitled, pursuant to s 159A(1), to have the whole of the time spent in custody brought into account when sentenced in relation to that charge. But it is said that there was another reason. That was the fact that s 199(2) of the Corrective Services Act prohibited his release on the court ordered parole date in respect of the sentence imposed on 10 November 2012 for other offences, offences not involved in the proceedings for “the offence” before the primary judge. That prohibition was activated because he was facing the charge of murdering Mr Dive.”

[15] It can be noted that s 199 of the Corrective Services Act 2006, in the first instance, mandates the release of a prisoner in accordance with a court ordered parole order and therefore, on the dated fixed by a court as the prisoner’s parole release date, but then provides for an exception, being when the prisoner is otherwise remanded in custody without bail for an offence and until such other charge is withdrawn.

[16] The judgment in R v McCusker then continues as follows:

“[15] It is obvious that the only reason for Mr McCusker’s incarceration

after 10 September 2013 was that he faced a charge of murdering Mr Dive. Hence, the argument that there was some reason other than that “the offender was held in custody in relation to proceedings for the offence” before the Court – that offence being the murder charge – was technical at best. In justice, whether declarable or not, there was no reason why that time in custody should not have been treated – in full – as time served under the sentence imposed for the unlawful killing of Mr Dive. In not doing so I consider that her Honour fell into error. A peculiar feature of the case is that in the statement of agreed facts put before the primary judge it was said that this period of incarceration “should be considered to be time spent in custody as a result of this charge”. That position was not maintained for reasons that remain unclear.”

[17] Following that, the Court proceeded to consider the application of s 159A of the Penalties and Sentences Act 1992 to those circumstances and concluded that the section was applicable and should be applied. It should be noted here that s 159A provides as follows:

“(1) 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 and for no other reason

must be taken to be imprisonment already served under the

sentence, unless the sentencing court otherwise orders.”

[18] Essentially, it was reasoned that in considering the scope of the words “held in custody in relation to proceedings for the offence and for no other reason” the phrase “in relation to” is to be given its normal operational meaning: “in connection with”. And that by application of that interpretation to those circumstances, it was then concluded:

“[19] Looked at objectively can it be said that the applicant was held in

custody “in connection with” the murder charge? Without a doubt. Was he held for any other reason? Not at all. Section 199(1) of the Corrective Services Act otherwise entitled him to be released on his parole release date.

[20] The approach the primary judge expressed – that the applicant was

“required to serve the whole of the sentence imposed on [him] on the earlier offences because of [his] arrest for this offence” – while true as a statement of what had transpired, did not reflect any requirement of the legislation. The legislation did not “require” the applicant to serve any further imprisonment in relation to those earlier offences. Had the sentencing taken place on 10 September 2013 the applicant would have not served one day more of the sentence imposed for the prior and unrelated offences.

[21] That approach is behind the interpretation that the prosecution

adopted before the primary judge and this Court. It essentially ignores the fact that the “other reason” for holding the applicant was inextricably bound up with the charge that was before the court.”

[19] Otherwise and in the context of the requirement in s 14A of the Acts Interpretation Act 1954 and as to the adoption of the interpretation that will best achieve the purpose of an Act in preference to any other and also references to the inclusory definition of the phrase “proceedings for the offence” in s 159A(10) of the Penalties and Sentences Act 1992, it was further stated in R v McCusker, that:

“[23] Consideration of the context and the mischief that the legislature

sought to remedy do not suggest that the approach I take is misconceived. The legislature was plainly concerned that prisoners were not to be disadvantaged by serving longer in incarceration than was proportionate to their crime. The approach that the prosecution urges in this case would bring about that very disadvantage.”

[20] And further observed:

“[25] The approach that her Honour took, or at least expressed, is a very

common one. It applies in the more usual case where the prisoner before the Court has no immediate right of release in respect of the other offences, offences not the subject of the proceedings, on which he or she is being held. Then there is a need to apply some judgment as to what part of the period ought to be brought into account. There is then some other reason for the incarceration of the prisoner. But that is not this case.”

[21] It is that observation which leads directly to the consideration of an obvious difference in circumstances in this case, in that the period of pre-sentence custody or any part of the period from 23 July 2015 to date, which might be regarded as pre-sentence custody, is not in any way related to the operation of s 199 of the Corrective Services Act 2006 or any “immediate right of release” of the defendant.

[22] The Prosecutor submits that there was, in this case, another reason for the defendant being held in custody from 23 July 2015, quite apart from any complications arising through any grant of bail to him and being other than in relation to or in connection with the proceedings for the robbery offence. It is submitted that that is to be found in a decision made pursuant to s 201 of the Corrective Services Act 2006, to suspend his parole which related to a separate sentence imposed in respect of other offending.

[23] Dealing with the argument as it was first put to the Court for the defendant and if the reasoning for that decision is examined, it can be seen that there is force in the contention that the real or effective reason for the defendant’s incarceration was his being charged with and initially remanded in custody upon the charge of robbery. It can be noted that had the decision to suspend his parole not been made, there would be no doubt that s 159A would be applicable to the period of pre-sentence custody, at least until he was released on bail for the offence before the Court.

[24] Also and subject to the later engagement of the provisions of s 211 of the Corrective Services Act 2006, that period, whether the defendant served it in custody or otherwise, may have otherwise been counted towards him serving the earlier sentence (see: R v Smith (2015) 1 Qd R 323).

[25] For the Prosecution, it was contended that there was other information available as to the deficiencies in the defendant’s performance under the court ordered parole order, that may have provided some further basis or considerations relevant to the decision to suspend his parole from 23 July 2015. In this regard, it can be noted that the contents of the email in Exhibit 8, at least contains information that might have been taken into account in relation to the decision to suspend, on the basis of a formation of a reasonable belief that the defendant posed an unacceptable risk of committing an offence. However, the obvious problem with this contention is that the suspension notice makes no reference to any such consideration and rather, expressly states the sole consideration as:

“In that, Mr Byriel has been charged with the offence of robbery with actual violence, armed/in company/wounded/used personal violence, allegedly committed 22/07/2015.”

[26] Also and to the extent that any such information may have otherwise provided grounds for suspending the defendant’s parole, apart from a period of suspension from 2 April to 28 May 2015, there was no other indication of any such action being taken. It is also not known what was the basis of that suspension in April and May of 2015.

[27] Although it can also be observed that this power to suspend the defendant’s parole has been exercised upon a basis which may be noted to also be a basis recognised in s 16 of the Bail Act 1980, for refusing a grant of bail to a person charged with an offence, it nevertheless requires and involves a separate decision under s 201 of the Corrective Services Act 2006. And, therefore, the position here differs from the position of a prisoner such as R v McCusker, to whom s 199 of the Corrective Services Act 2006 applies and where the mere fact that such a prisoner has otherwise been remanded in custody for another offence, will prevent an action being taken to effect a court ordered release to parole.

[28] Accordingly, I am inclined to the view that the reasoning in R v McCusker should not be extended in application beyond the particular circumstances which were involved there and which, most critically, involved the application of s 199 of the Corrective Services Act 2006 during a sentence that had otherwise been served before the offender was to be further sentenced.

[29] Such a conclusion would appear to be consistent with the expressed approach in R v McCusker, which was to effectively achieve what might have earlier been imposed as a partly concurrent sentence and thereby achieving a proportionate sentence to the offence committed and also the notation as to the unusual or uncommonly encountered circumstances that arose in that case (see: R v McCusker at [7], [20] and [25]).

[30] Further, it can be noted that it was otherwise determined in R v McCusker that, even if s 159A did not apply to the pre-sentence custody, it should nevertheless have been taken into account, in full, in fixing the latter sentence. The further determination as to the application of the mechanism in s 159A, simply allowed the fixing of what was regarded as the appropriate sentence, without detraction from that appearance by adjustment to take that pre-sentence custody into account.

[31] However and in this case, there is no need to reach a definitive conclusion as to whether s 159A applies, in that the defendant “was held in custody in relation to proceedings for the offence and for no other reason”, because of both the additional complications as to his being granted bail at different times in relation to the offence before the Court and because of the additional words that require that such custody “must be taken to be imprisonment already served under the sentence unless the sentencing Court otherwise orders”.

[32] Unlike the situation in R v McCusker, the defendant has not completed serving his existing sentence and as has been noted and pursuant to s 156A(3) of the Penalties and Sentences Act 1992, any term of imprisonment in respect of which pre-sentence custody might be declared pursuant to s 159A “must be ordered to be served cumulatively with any other term of imprisonment the offender is liable to serve”. It may be seen that, if a declaration is made under s 159A of the Penalties and Sentences Act 1992, in respect of any of the period of custody since 23 July 2015, the effect would be to make the term imposed in respect of the robbery at least partly concurrent with the existing sentence and therefore to operate inconsistently with the statutory requirement in s 156A(3).

[33] Quite apart from this being a further indication of the desirability of not extending the R v McCusker reasoning to this situation, it provides a clear basis upon which the Court should order otherwise. If s 159A was applicable, there is no unfairness or prejudice for the defendant in such an outcome. The time that he has served in custody since 23 July 2015, will count towards his overall period of imprisonment and be taken into account, both in respect of the usual application of principle in fixing the length of the cumulative term to be imposed and therefore the totality of the period of imprisonment that he has to serve and also in respect of fixing a parole eligibility date, in accordance with s 160C of the Penalties and Sentences Act 1992.