R v Bjorland

[2006] QDC 61

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Bjorland [2006] QDC 061

PARTIES:

R

Applicant

v

BENJAMIN JOSEPH BJORLAND

Respondent

FILE NO:

336/04

PROCEEDING:

Application

ORIGINATING COURT:

District Court Southport

DELIVERED ON:

 16 March 2006

DELIVERED AT:

Southport

HEARING DATE:

 24 February, 2, 16 March 2006

JUDGE:

Rackemann DCJ

ORDER:

Application refused

CATCHWORDS:

Application to re-open sentence – whether parole recommendation inoperable or incapable of receiving effect – whether sentence decided on a clear factual error of substance

Penalties and Sentences Act 1992

Cases cited:
R v Cassar ex parte AG [2002] 1 QdR 338
R v Duong [2004] QCA 164
R v Hood [2005] 2 QdR 54
R v Mackenzie [2002] 1 QdR 410

COUNSEL:

Applicant in person
Mr Whitbread for the respondent

SOLICITORS:

Director of Public Prosecutions for the respondent

1. On 16 November 2004, the applicant was convicted, on his own plea of guilty, of one count of attempted armed robbery.  He was sentenced, on that day, to 4½ years’ imprisonment, with a recommendation that he be considered for ‘parole’ at the expiration of 18 months.  There was a declaration as to the 392 days of pre-sentence custody. 

1. The applicant was first considered for early post-prison community-based release in May 2005.  A letter from the Brisbane Regional Community Corrections Board (the ‘Board’), dated 19 May 2005, records that the application was considered at a meeting held on 5 May 2005, but was refused.  The following reasons were given for that refusal:

   “(1)  Your classification is described as medium.  Ministerial Guideline 2.2 indicates that post prison community based release should only be considered where a low or open classification applies;

   (2)  Your RNI score is medium – 24.  This indicates a serious risk to the community and a serious risk of re-offending;

   (3)  Your failure to complete the recommended transition program;

   (4)  Outstanding treatment recommendations regarding your mental health;

   (5)  A perceived lack of adequate community support in your proposed release plan, including a lack of appropriate accommodation;

   (6)Inadequate relapse prevention plan including under-developed strategies for managing contact with previous associates.”

2. The letter went on to advise the applicant that:

   “Although you received a judicial recommendation for early release, members of the board were of the opinion that a number at least of the matters referred to above would not have been within the knowledge of the sentencing Judge at the time of sentencing.

   All of the matters mentioned above led the board to the view that your application for release back into the community at this time is inappropriate, particularly in view of your risk of re-offending.

   In reaching this decision the members of the board took careful account of all the issues raised by you in your written application and your oral representations.  Consideration was also given to all relevant file material, including, but not limited to the Assessment Unit Report, details of your offences, the Judge’s Sentencing Remarks and your official criminal history.”

3. The Assessment Unit Report contained the following observations in the “Summary and Evaluation” section: