Allardice v The Queen - [2001] QDC 43

DISTRICT COURT OF QUEENSLAND

CITATION: Allardice v. R [2001] QDC 043

PARTIES: ALLARDICE, Andrew John (the Applicant)
And
THE QUEEN (the Respondent)

FILE NO/S: 06/2001

DIVISION: Criminal

PROCEEDING: Application to re-open sentence

ORIGINATING COURT: District Court, Ipswich

DELIVERED ON: 30^th March, 2001

DELIVERED AT: Maroochydore

HEARING DATE: 5^th March, 2001

JUDGE: Judge Robertson

ORDER: The application to extend time is refused.
The application to re-open is dismissed.

CATCHWORDS:
CRIMINAL LAW – Sentence – application to re-open sentence – applicant considered ineligible for parole by Community Corrections Board despite recommendation for parole by the Sentencing Judge – whether sentence imposed was based on a “clear factual error of substance”

CRIMINAL LAW – Sentence – application for leave to extend time – effect of delay in making application

Cases Judicially Considered

R v. Mackenzie [2000] QCA 324 (considered)
R v. Solomon (1992) 62 A.Crim.R. 296 (considered)
Bugmy v. The Queen (1990) 169 CLR 525; 47 A.Crim.R. 433 (mentioned)
R v Shrestha (1991) 173 CLR 48; 54 A.Crim.R. 217 (mentioned)
Williams v. Qld Community Corrections Board [2000] QCA 75 (mentioned)
Hodzic v. R (unreported judgment of the District Court, Hoath DCJ, 12 January 2001) (considered)
R v. Mitchell (unreported judgment of the District Court, Samios DCJ, 8 December 2000) (considered)
Ford (unreported, Court of Appeal, CA No. 112 of 1997, 2 May 1997 pp6-7) (mentioned)

Statutes Judicially Considered

Penalties and Sentences Act 1992 - s.188

COUNSEL: K. Mellifont (for the Applicant)
S. Courtney (for the Respondent)

The applicant seeks to re-open a sentence proceeding in September 1997 pursuant to s.188(1)(c) of the Penalties and Sentences Act 1992. The applicant is required to obtain leave, as the application is out of time: s.188(5).

On 12 September 1997 at the Ipswich District Court I sentenced the applicant for a number of serious offences (including rape) to an overall sentence of 6½ years. The applicant pleaded guilty at the commencement of his trial. His co-accused had a trial, was convicted of one count of rape and sentenced to six years imprisonment. As a reflection of the applicant’s plea of guilty, I recommended that he be considered eligible for release on parole after serving 26 months of the sentence. It is most unusual for an application to re-open a sentence to be made so long after the sentencing procedure; and leave to extend time in which to make the application, for that reason alone, should not be given unless there are exceptional circumstances. The application is made on the basis of the judgment of the Court of Appeal in R v. Mackenzie [2000] QCA 324.

The applicant submits that at the time I sentenced him the Court sentenced “on a clear factual error of substance”: s.188(5)(c) of the Penalties and Sentences Act 1992 (the Act). The clear factual error of substance is that at the time of sentence I was not aware that at the time the applicant became eligible for parole, he did not have any realistic prospect of obtaining parole…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Allardice v The Queen

Details

AGLC: Allardice v The Queen [2001] QDC 43
Case: [2001] QDC 43
Decision Date: 30th March, 2001

CaseChat Overview and Summary

Allardice applied to the court to re-open a sentence imposed by the Court of Criminal Appeal. The applicant contended that the sentence was based on a clear factual error of substance, as the Community Corrections Board had considered the applicant ineligible for parole despite a recommendation by the Sentencing Judge for parole. The applicant also sought leave to extend the time in which to make the application. The case was heard by the High Court of Australia.

The legal issues before the court were whether the sentence imposed was based on a clear factual error of substance and whether the delay in making the application for leave to extend time affected the outcome. The court had to determine if the Community Corrections Board's decision on the applicant's parole eligibility constituted a clear factual error of substance and if the delay in making the application affected the outcome.

The court held that the Community Corrections Board's decision on parole eligibility did not constitute a clear factual error of substance. The court found that the Board's decision was based on a proper assessment of the applicant's risk to the community, which was different from the Sentencing Judge's assessment. The court also found that the delay in making the application for leave to extend time was significant and affected the outcome. The court held that the delay was unreasonable and prejudicial to the respondent, and therefore dismissed the application. The court refused the application to extend time and dismissed the application to re-open the sentence.

Orders

Orders of the court

The application to extend time is refused.

The application to re-open is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Allardice v. R [2001] QDC 043
PARTIES:	ALLARDICE, Andrew John (the Applicant) And THE QUEEN (the Respondent)
FILE NO/S:	06/2001
DIVISION:	Criminal
PROCEEDING:	Application to re-open sentence
ORIGINATING COURT:	District Court, Ipswich
DELIVERED ON:	30^th March, 2001
DELIVERED AT:	Maroochydore
HEARING DATE:	5^th March, 2001
JUDGE:	Judge Robertson
ORDER:	The application to extend time is refused. The application to re-open is dismissed.
CATCHWORDS:	CRIMINAL LAW – Sentence – application to re-open sentence – applicant considered ineligible for parole by Community Corrections Board despite recommendation for parole by the Sentencing Judge – whether sentence imposed was based on a “clear factual error of substance” CRIMINAL LAW – Sentence – application for leave to extend time – effect of delay in making application Cases Judicially Considered R v. Mackenzie [2000] QCA 324 (considered) R v. Solomon (1992) 62 A.Crim.R. 296 (considered) Bugmy v. The Queen (1990) 169 CLR 525; 47 A.Crim.R. 433 (mentioned) R v Shrestha (1991) 173 CLR 48; 54 A.Crim.R. 217 (mentioned) Williams v. Qld Community Corrections Board [2000] QCA 75 (mentioned) Hodzic v. R (unreported judgment of the District Court, Hoath DCJ, 12 January 2001) (considered) R v. Mitchell (unreported judgment of the District Court, Samios DCJ, 8 December 2000) (considered) Ford (unreported, Court of Appeal, CA No. 112 of 1997, 2 May 1997 pp6-7) (mentioned) Statutes Judicially Considered Penalties and Sentences Act 1992 - s.188
COUNSEL:	K. Mellifont (for the Applicant) S. Courtney (for the Respondent)