DISTRICT COURT OF QUEENSLAND
CITATION: Allardice v. R [2001] QDC 043 PARTIES: ALLARDICE, Andrew John (the Applicant)
And
THE QUEEN (the Respondent)FILE NO/S: 06/2001 DIVISION: Criminal PROCEEDING: Application to re-open sentence ORIGINATING COURT: District Court, Ipswich DELIVERED ON: 30th March, 2001 DELIVERED AT: Maroochydore HEARING DATE: 5th March, 2001 JUDGE: Judge Robertson ORDER: The application to extend time is refused.
The application to re-open is dismissed.CATCHWORDS: CRIMINAL LAW – Sentence – application to re-open sentence – applicant considered ineligible for parole by Community Corrections Board despite recommendation for parole by the Sentencing Judge – whether sentence imposed was based on a “clear factual error of substance”
CRIMINAL LAW – Sentence – application for leave to extend time – effect of delay in making application
Cases Judicially Considered
R v. Mackenzie [2000] QCA 324 (considered)
R v. Solomon (1992) 62 A.Crim.R. 296 (considered)
Bugmy v. The Queen (1990) 169 CLR 525; 47 A.Crim.R. 433 (mentioned)
R v Shrestha (1991) 173 CLR 48; 54 A.Crim.R. 217 (mentioned)
Williams v. Qld Community Corrections Board [2000] QCA 75 (mentioned)
Hodzic v. R (unreported judgment of the District Court, Hoath DCJ, 12 January 2001) (considered)
R v. Mitchell (unreported judgment of the District Court, Samios DCJ, 8 December 2000) (considered)
Ford (unreported, Court of Appeal, CA No. 112 of 1997, 2 May 1997 pp6-7) (mentioned)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…
Continue reading Allardice v The Queen
Sign in free to access the full text
- AGLC
- Allardice v The Queen [2001] QDC 43
- Case
- [2001] QDC 43
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.