Harlovich v The Queen

[2002] QDC 250

DISTRICT COURT OF QUEENSLAND

CITATION:	Harlovich v The Queen [2002] QDC 250
PARTIES:	PETER JOHN HARLOVICH

Applicant

THE QUEEN

Respondent

FILE NO/S:	969 / 1999 and 970 / 1999
DIVISION:	District Court
PROCEEDING:	Application for Review of Sentence
ORIGINATING
COURT:	District Court Brisbane
DELIVERED ON:	9 April 2002
DELIVERED AT:	Brisbane
HEARING DATE:	15 March 2002
JUDGE:	Newton DCJ
ORDER:	Application allowed – sentence varied
CATCHWORDS:	Application for review of sentence – section 188(1)(c) Penalties And Sentences Act (1992) – whether Judge was under a mistaken impression on a clear factual error of substance – section 75 Corrective Services Act (2000) – a prisoner serving a term of imprisonment for an offence committed before the commencement of the section is not eligible for remissions if during the period of imprisonment he has been granted release to work, home detention or parole under the 1998 Act or a post-prison community-based release order under the 2000 Act – section 207B Corrective Services Act (1998) – removed eligibility for remission in the event that before or after the commencement of the section a prisoner was granted release to work, release to home detention or parole – whether such change in legislation can be regarded as amounting to a clear factual error of substance.
The Queen v Scott Andrew McMahon [2002] QCA 18 R v Cassar ex parte Attorney-General [2001] QCA 300 R v Kelly [2001] QCA 202
COUNSEL:	Applicant in person Mr S Vasta – respondent
SOLICITORS:	Director of Public Prosecutions Office – respondent

[1]  On 26 March 1999 the applicant, Peter John Harlovich, pleaded guilty in the District Court at Brisbane to four counts of receiving, three counts of fraud, three counts of armed robbery, one count of unlawful use of a motor vehicle with a circumstance of aggravation and one count of stealing. An effective head sentence of six years’ imprisonment was imposed which was to commence at the expiration of any sentence of imprisonment to which the applicant was then currently liable.

[2] In his affidavit filed on 24 January 2002 the applicant states that:

“At the time of my sentencing I formed a real and legitimate expectation that I would be entitled to remission on the sentences that I was serving at the time and on the sentence that his Honour was imposing.”

[3]  At the sentencing proceedings I was handed by the Prosecutor a document which indicated that the remitted discharge date for the applicant was 18 December 1999.

[4]  On 9 July 2001 the applicant was handed a document indicating that as a result of certain provisions of the Corrective Services Act 2000 he had lost all remission on all sentences. Accordingly, the sentences imposed on 26 March 1999 would not commence until 9 December 2002 and, because the applicant was not entitled to remissions in respect of those sentences, the applicant’s date for release would not occur until 8 December 2008.

[5]  The applicant complains that had I been properly informed by the Crown on 26…