R v Abbott

[2001] QSC 281

[2001] QSC 281

THE SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

MACKENZIE J

Indictment No 437 of 1999

THE QUEEN

v.

LESLIE WILLIAM ABBOTT

BRISBANE

..DATE 27/06/2001

ORDER

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HIS HONOUR:  This is an application to reopen a sentence

under section 188(1)(c) of the Penalties and Sentences Act

1992.  That provision allows a sentence to be reopened if

it was decided on a clear factual error of substance. 

Sections 188(1)(a) and (b) are concerned only with

correcting sentences which cannot be imposed according to

law.  It is accepted on both sides, and I agree, that

provided a sentence is one which may be imposed according to
law, an error of law not going to jurisdiction made in the

course of the decision cannot be corrected under section

188. 

The brief facts of the matter are that the applicant, who

has a criminal history extending back to 1975, was

relevantly sentenced in the District Court on 22 May 1995 to
imprisonment for five years for rape.  41 days were taken

into account as time served and a recommendation for

consideration for parole after 18 months was made.  Then on

11 January 1996 he was sentenced in the Supreme Court

effectively to nine months' cumulative imprisonment when he

appeared on nine counts of supplying a dangerous drug and a

count of possession of a motor vehicle used in connection

with supplying and possession of a dangerous drug.  It was

ordered that he be eligible to apply for parole on

31 December 1996.  He was granted parole on that date and

then he committed a series of drug offences, the first of

which occurred just over five months after his release on

parole.  The second was committed about three months later

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in August that year.  The third occurred in July 1998.  The

fourth was in June 1999.  He was sentenced to six months'

cumulative imprisonment with a recommendation that he be

immediately eligible for parole upon commencement of the

cumulative sentence.  Upon his being sentenced, parole was

cancelled by operation of section 187(1) of the Corrective

Services Act.  The period while on parole did not count as

part of the sentence (s190(1)).  He spent 1,038 days out of

prison on parole. 

The result of this series of events is that he has a

full‑time release date, for the offences for which he was

paroled, of 7 July 2002.  By the order made on 5 November

1999 he was eligible for parole upon the expiration of the

preceding sentences. 

It is convenient to mention also at this point section

190(2), which allows the Community Corrections Board to

direct that a prisoner serve only part of the unexpired

portion of the term of imprisonment when parole has been

cancelled.  If that happens, service of that part entitles

the prisoner to discharge. 

Mr Martin, who appears for the Crown, points out that there

is no evidence that any request has been made to the Board 

in that regard. 

Factors relevant to the sentence were the following:  the

applicant had committed serial offences of possession of

ORDER
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methylamphetamine; two of the offences were aggravated

because of the quantity.  He was sentenced on the basis that
it was not proved that the possession was for a commercial

purpose but that he was well connected in the drug

community.  The offences were all committed while he was on

parole.  Three were committed while he was on bail for the

preceding offences.  And he had previous drug convictions. 

It is obvious that the applicant was a repetitive offender

with factors counting against him when the question of

parole came to be considered again by the relevant

authorities.  Further, as the reasons indicated, when he was
sentenced, a cumulative punishment was necessary to mark the
seriousness of the offences in the context in which they

occurred.  However, the head sentence was moderated to a

considerably shorter period than would have been justified

if he had been sentenced for a series of offences of the

kind committed, committed while on bail and with his

background. 

As a result of cancellation of parole on the first two

offences, there was no "current" recommendation (The Queen

v. Doyle (1996) 1 QdR 407 at 410) or "existing"

recommendation (The Queen v. Burton (1995) 83 ACrimR 453,

455).  At the time of sentence his eligibility for release

on parole could only be recommended in relation to the fresh
term (The Queen v. Cutajar (1995) ACrimR 280 at 282) ‑ See

also R v McCormick, ex parte the Attorney‑General (1999) QCA
354. 

ORDER
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These authorities were debated immediately before sentence

was imposed on 5 November 1999 as a result of my having

asked for submissions on the effect of McCormick.  I will

refer only to two specific aspects of the submissions on the
reasons delivered at the time of sentence. 

The first concerns the last paragraph on page 3.  Although

Ms Wilson did not specifically present it in oral

submissions ‑ and I note that the written submissions were

not her compilation ‑ there is a submission that the

paragraph referred to expresses an opinion that the

Community Corrections Board could act under section 191 in

this case.  The first comment is that the paragraph is a

recital of statutory provisions relevant to the effective

cancellation of parole in general terms not specific terms. 
The second is that the words "that is a matter which I need

not resolve today" grammatically relate to the operation of

section 190 not to the paragraph as a whole. 

The second matter upon which I will comment is that the last
three paragraphs of the sentencing reasons contain the core

of the decision but that they must be read in the context of
the preceding paragraphs and the submissions immediately

prior to sentence.  I do not intend to express a direct view
as to their effect since that may fall to be determined

elsewhere in view of the decision that I have come to.  I

simply note by way of clarification that the reference to

"second" at page 6, line 11 of the sentencing reasons is

intended to relate to the offences for which the applicant

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was being sentenced on that day as opposed to the sentences

in respect of which his parole had been cancelled. 

It is sufficient for present purposes to say that if, as the
applicant submits, there has been a reliance on the

existence of power for the Community Corrections Board to

grant parole again with respect to the original two

sentences, that is, in my view, not a "factual error" within
the meaning of section 188(1)(c). Such an error would be as
to the construction of a statutory provision which is

properly characterised as an error of law. 

The remedy for an error of law would be to seek leave to

appeal against the sentence on the basis that the exercise

of discretion had been tainted by an error and to invite the
Court of Appeal to exercise the sentencing discretion

afresh, or, if a decision of an administrative character has
been tainted by a wrong interpretation of the law, to seek

redress under the Judicial Review Act.

Several examples of cases where jurisdiction under section

188(1)(c) had been exercised were relied on.  However, in my
view, they are distinguishable.  The Queen v. MacKenzie

(2000) QCA 234 was a case which the President said was

"finally balanced".  The point upon which the decision

turned was that the Court was not aware that the Community

Corrections Board would not consider an application for

parole on its merits at the time recommended because of the

effect of things such as policy guidelines, classification,

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timing of reviews and delay in completing programs required

to be completed before release. 

In the Queen v. Hodzic it was that the sentencing Judge,

Judge Hoath, did not know that a classification would be

given which would be such that the prisoner could not meet

the requirements of the Parole Board for release at the time
contemplated and that he could not get a placement in

courses considered necessary in a timely way. 

In The Queen v. Mitchell, decided by Judge Samios, it was

not knowing that a security classification would be assigned
which precluded obtaining parole within a reasonable time of
the recommendation. 

In The Queen v.  Shaw, another decision by Judge Hoath, it

was a mistaken belief that a period of time referred to in

submissions had included rather than excluded cumulative

sentences for Bail Act offences.

I should elaborate also on the reason why, if it were to be

concluded that there was an erroneous interpretation of the

Corrective Services Act and the powers under it, the error

would not be a clear factual error. 

The distinction between mistakes of fact and mistakes of law
and the concept of a mixed question of fact and law, which

is treated as a mistake of fact, are discussed by Dixon J in

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Thomas v. The King (1937) 59 CLR 279 at 306 and 307 in

some detail.  Passing reference to one part of this passage

was made in The Queen v. Sheehan (2001) 1 Qd.R. 198.

The concept of mistake of fact, which may be thought to have
some similarities to the concept in section 188, is

discussed in numerous authorities on section 24 of the

Criminal Code, some of which are of more relevance than

others to the present kind of case. 

In Olsen v. The Grain Sorghum Marketing Board (1962) Qd.R.

580, Counsel's advice that certain activity was lawful was

held not to found a mistake of fact defence. 

Loch v. Hunter, Full Court, 1 May 1957, unreported, which

is referred to in Olsen, was a case where a belief based on

wrong information given to a publican about licensing hours

by a police officer was held to be a mistake of law. 

If the interpretation of section 188 were free from

authority, I would have thought that a mere expectation that
turns out to be misplaced that the application of

legislation, subordinate legislation, or a rule authorised

by statute, alone or in combination with the application of

criteria involving the exercise of discretion, would lead to
a particular result at a further time is not a factual error
at all. 

Lateral application of The Queen v. Gould and Barnes (1960)

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Qd.R. 283 is not inconsistent with this view.  It was a case
where the mistake relied on was as to a future event, the

consequence of administering a substance which was noxious

to a person.  A mistake as to the effect of administration

of the noxious substance was held not to be a mistake of

fact. 

In my opinion, taking the present case as its highest for

the applicant, there is no basis for characterising what is

said to be an error as a factual error.  The application

therefore must be dismissed. 

I would simply add that the reason why I think the

authorities relied on are distinguishable is that, as

opposed to those cases, it is plain in the present case that
there was no mistaken expectation that the applicant would

or was likely to receive reduction in the time to be spent

in custody following the cancellation of his parole.  (See

the sentencing submissions, particularly at page 5, line 15,
and following and the sentence reasons page 4, line 28). 

The sentence is premised, on the best view for the

applicant, on the proposition that because of his breach of

parole by committing multiple sequential offences, serving

the whole unexpired term of the previous sentences was a

distinct likelihood.  The imposition of a short cumulative

sentence, while recognising that, was thought appropriate. 

I note in passing that in argument today the subject of the

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failure to put accurate information before the trial Judge,

in the context of a party being bound by the way in which

the case was conducted, was touched on.  It is not necessary
to resolve that issue today.  However, one would imagine

that there must be some limit on using section 188 in a case
of subsequent discovery of matters which an accused might

wish to rely on to put his case in a better light.  The

extent to which that notion ought to apply, where inaccurate
expectations of what might happen in the corrective system

are put before the trial Judge by the defence, need not be

resolved today either. 

The order that I make is that the application is dismissed.

‑‑‑‑‑

ORDER
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