Perceval v Queensland Police Service - [2015] QDC 47

[2015] QDC 47

DISTRICT COURT OF QUEENSLAND
APPELLATE JURISDICTION
JUDGE DEVEREAUX SC
PERCEVAL
v.
QUEENSLAND POLICE SERVICE
BRISBANE
11.07 AM, FRIDAY, 13 FEBRUARY 2015
JUDGMENT

HIS HONOUR: The appellant Perceval was sentenced by a learned Magistrate, on the 8^th of September 2014, to two periods of four months imprisonment concurrent with each other, but cumulative upon his existing sentences. The learned Magistrate fixed 7 April 2015 as the parole eligibility date.

The appeal is against sentence on the basis that the sentence is excessive. It is said that it was excessive for a number of reasons, but the two relevant grounds are that there was error in making the sentences cumulative and that the Magistrate erred in fixing the parole eligibility date some seven months after the sentence date.

I am not satisfied that his Honour erred by making the sentences cumulative. I am satisfied there was error in the method adopted, which led to the fixing of the parole eligibility date.

To explain that, I need to set out briefly the offences and something about the appellant’s criminal history. The appellant was born on the 22^nd of November 1976; that makes him 38 years old now. He has a three page criminal history. Importantly, on 17 September 2012, he was sentenced to 2½ years imprisonment by the District Court for charges which included: entering premises and committing indictable offences, entering premises with intent, stealing and receiving.

The period of 300 hundred days already served was declared imprisonment under the sentences. A parole release date was fixed at 17 September 2012; that is to say the sentence date. So the appellant was there being sentenced to two and a-half years imprisonment, having served 300 hundred days. He was released immediately on parole.

He was again before the District Court on 27 August 2013, that is, less than a year later, for offences of entering premises and unlawful use of a motor vehicle, wilful damage and stealing committed in October and November 2012, that is, within a month or two of his release on parole. On 27 of August 2013, he was sentenced to two years imprisonment.

The record does not show that there was any presentence custody declared as imprisonment served under the sentences. I infer from that that any presentence custody was the service of parole in custody, as it were.

The offences before the learned Magistrate on this occasion were permitted on 19 and 23 April 2014, again, while the appellant was on parole. On their own they were not serious charges of stealing, they were basically shoplifting offences. But they were charged with the circumstance of aggravation that they were offences committed after a previous conviction. Such offences draw a statutory maximum period of 10 years imprisonment. The Magistrate was limited to a sentence of three years.

The solicitor who appeared for the appellant submitted that a sentence of six to nine months was appropriate, on the basis that the sentence would be concurrent. And…

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.

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Details

Case: [2015] QDC 47
Decision Date: 13 FEBRUARY 2015

CaseChat Overview and Summary

In the case of Perceval v Queensland Police Service, the appellant, Perceval, appealed against his sentence imposed by a Magistrate on the basis that it was excessive. The Magistrate had sentenced Perceval to two concurrent four-month periods of imprisonment, which were cumulative on his existing sentences, with parole eligibility set for 7 April 2015. The appeal focused on the Magistrate's decision to make the sentences cumulative and the timing of the parole eligibility date, which was set seven months after the sentence date.

The legal issues before the court were whether the Magistrate erred in making the sentences cumulative and whether the Magistrate's method of setting the parole eligibility date was appropriate. The appellant argued that the cumulative sentences, combined with the delayed parole eligibility date, rendered the sentence excessive. The court considered whether there was any error in principle in imposing cumulative sentences for offences committed while on parole and whether the Magistrate's approach to setting the parole eligibility date was flawed.

The court found that while there was no error in principle in imposing short cumulative sentences for the new offences committed on parole, the Magistrate erred in his approach to fixing the parole eligibility date. The court held that the Magistrate had incorrectly calculated the parole eligibility date by considering only the period from the sentencing date to the full time release date, rather than taking into account the entire sentence period. This error rendered the sentence excessive. Consequently, the court varied the parole eligibility date from 7 April 2015 to 13 February 2015.

In summary, the court allowed the appeal on the ground that the error in setting the parole eligibility date rendered the sentence excessive. The court varied the parole eligibility date from 7 April 2015 to 13 February 2015, the date of the judgment.

Orders