R v Assurson

SUPREME COURT OF QUEENSLAND

CITATION:

R v Assurson [2007] QCA 350

PARTIES:

R
v
ASSURSON, Hev
(applicant/appellant)

FILE NO/S:

CA No 72 of 2007
SC No 561 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application – Further Order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Williams and Keane JJA and Mullins J
Judgment of the Court

ORDER:

Amend paragraph 2(b) of the orders of this Court made on 24 August 2007 in R v Assurson [2007] QCA 273 by removing 14 September 2012 and inserting in lieu thereof 1 January 2011

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – INHERENT POWER TO AMEND TO GIVE EFFECT TO THE MEANING AND INTENTION OF COURT – where Court allowed appeal against sentence – where order made setting parole eligibility date – where date set failed to take into account time spent in pre-sentence custody – whether order should be amended

R v Allen [1994] 1 Qd R 526, cited
R v Gordon [2007] 1 WLR 2117, cited

COUNSEL:

No appearance by the applicant/appellant, the applicant/appellant’s submissions were heard on the papers No appearance by the respondents, the respondent’s submissions were heard on the papers

SOLICITORS:

No appearance by the applicant/appellant, the applicant/appellant’s submissions were heard on the papers No appearance by the respondents, the respondent’s submissions were heard on the papers

THE COURT: On 24 August 2007 the Court made the following orders in this matter: [2007] QCA 273:

1. Grant leave to appeal against sentence.

2. Allow the appeal to the extent of :

(a) deleting from the sentence imposed on the count of trafficking the serious violent offence declaration;

(b) fixing the appellant's parole eligibility date as 14 September 2012;

3. Otherwise confirm the sentences as imposed.

It is clear from the separate reasons for judgment of Williams JA and Keane JA that the intention behind the order was that the applicant serve five and a half years in custody for the principal offence of trafficking in a mix of illegal drugs. Paragraph [3] of the order of the Court effectively confirmed the declaration made at first instance that the 621 days spent in pre-sentence custody be declared as time already served. But that was not reflected in that part of the order which fixed the parole eligibility date as 14 September 2012.

In written submissions to the Court both counsel for the applicant and counsel for the respondent have requested that the order of the Court be amended so that the parole eligibility date reflects the 621 days spent in pre-sentence custody.

Pursuant to its inherent jurisdiction (see R v Allen [1994] 1 Qd R 526 and R v Gordon [2007] 1 WLR 2117) this Court amends the order pronounced on 24 August 2007 by deleting in paragraph 2(b) thereof the date 14 September 2012 and inserting in lieu thereof the date 1 January 2011.

The appeal in R v Assurson was heard before the Queensland Court of Appeal. The appellant, Assurson, sought to appeal against his sentence. The court was tasked with determining whether the order setting the parole eligibility date was flawed by not taking into account the time spent in pre-sentence custody.

The central legal issue before the court was whether the order made on 24 August 2007 should be amended to accurately reflect the parole eligibility date. Specifically, the court needed to decide whether the original order, which set the parole eligibility date as 14 September 2012, should be amended to 1 January 2011 to account for the time Assurson had spent in pre-sentence custody.

The court held that the original order failed to take into account the time Assurson had spent in pre-sentence custody, which was a material consideration in setting the parole eligibility date. The court exercised its inherent power to amend the order to give effect to the meaning and intention of the court, as the original order did not reflect the true date on which Assurson would be eligible for parole. Consequently, the court amended paragraph 2(b) of the orders made on 24 August 2007 by removing the date of 14 September 2012 and inserting in its place the date of 1 January 2011.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	R v Assurson [2007] QCA 350
PARTIES:	R v ASSURSON, Hev (applicant/appellant)
FILE NO/S:	CA No 72 of 2007 SC No 561 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application – Further Order
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	19 October 2007
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Williams and Keane JJA and Mullins J Judgment of the Court
ORDER:	*Amend paragraph 2(b) of the orders of this Court made on 24 August 2007 in R v Assurson* [2007] QCA 273 by removing 14 September 2012 and inserting in lieu thereof 1 January 2011**
CATCHWORDS:	PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – INHERENT POWER TO AMEND TO GIVE EFFECT TO THE MEANING AND INTENTION OF COURT – where Court allowed appeal against sentence – where order made setting parole eligibility date – where date set failed to take into account time spent in pre-sentence custody – whether order should be amended R v Allen [1994] 1 Qd R 526, cited R v Gordon [2007] 1 WLR 2117, cited
COUNSEL:	No appearance by the applicant/appellant, the applicant/appellant’s submissions were heard on the papers No appearance by the respondents, the respondent’s submissions were heard on the papers
SOLICITORS:	No appearance by the applicant/appellant, the applicant/appellant’s submissions were heard on the papers No appearance by the respondents, the respondent’s submissions were heard on the papers