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

LESLIE WILLIAM ABBOTT

BRISBANE

..DATE 27/06/2001

ORDER

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27062001 ck (Mackenzie J)

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

ORDER
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27062001 ck (Mackenzie J)

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…

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 R v Abbott

Details

AGLC: R v Abbott [2001] QSC 281
Case: [2001] QSC 281
Decision Date: 27/06/2001

CaseChat Overview and Summary

In the Supreme Court of Queensland, Leslie William Abbott sought to have his sentence reopened under section 188(1)(c) of the Penalties and Sentences Act 1992, which permits reopening if a sentence was based on a clear factual error of substance. The applicant, who had a significant criminal history dating back to 1975, was sentenced in 1995 to five years for rape and in 1996 to nine months for drug-related offences. After his parole was revoked, he committed further drug offences while on parole. The court needed to determine if the applicant's reliance on the Community Corrections Board's potential power to grant parole again constituted a clear factual error warranting sentence reopening.

The court examined whether the applicant's belief that parole might be granted again constituted a factual error. It was noted that the applicant's sentence was based on the likelihood of serving the entire unexpired term of his previous sentences due to his parole violations. The court distinguished this case from others where factual errors led to sentence reopening, holding that an erroneous expectation about future outcomes under corrective services legislation did not amount to a factual error. Consequently, the court found no basis to characterise the alleged error as factual and dismissed the application. The judge also suggested that there might be limits to using section 188 in cases where new information emerges post-trial, but this issue was not resolved in this instance.

Orders