SUPREME COURT OF QUEENSLAND
CITATION:
R v Braeckmans [2022] QCA 25
PARTIES:
R
v
BRAECKMANS, Timothy James
(applicant)FILE NO/S:
CA No 14 of 2021
DC No 86 of 2020
DC No 87 of 2020
DC No 65 of 2020DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Gladstone – Date of Sentence – 6 November 2020 (Burnett DCJ)
DELIVERED ON:
4 March 2022
DELIVERED AT:
Brisbane
HEARING DATE:
15 February 2022
JUDGES:
Sofronoff P and McMurdo JA and Kelly J
ORDERS:
1. Grant leave to appeal.
2. Allow the appeal.
3. Vary the orders made in the District Court on 6 November 2020 by:
a. varying the term of imprisonment of nine years, imposed on count 4 charged by indictment number 4332 of 2020, to a term of seven years’ imprisonment;
b. deleting the declaration that the applicant had committed a serious violent offence;
c. removing the declaration that the applicant had served pre-sentence custody and declaring instead that the applicant was held for a total of 392 days of pre-sentence custody between 10 October 2019 and 6 November 2020 and that none of that time is taken to be imprisonment already served under the sentence;
d. fixing the applicant’s parole eligibility date as 1 October 2023.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty for offences committed in the course of two home invasions in October 2019 – where the applicant was on parole when he committed the subject offences – where the applicant had been paroled in June 2019 in the course of serving a sentence imposed in December 2017 which had a full time release date of 31 May 2021 – where the sentencing judge applied s 156A(2) of the Penalties and Sentences Act 1992 (Qld) and ordered that some of the terms for the subject offences be served cumulatively with the December 2017 sentence, meaning that the subject terms were to commence in June 2021 – where the sentencing judge exercised his discretion under s 159A of the Penalties and Sentences Act 1992 (Qld) and declared 153 days of imprisonment already served – where there is a tension between the requirement in s 156A(2) for the subject terms to commence from a future date and the discretion under s 159A to order a declaration of pre-sentence custody – whether the provisions can be construed to give effect to harmonious goals – whether the sentencing judge erred in exercising his discretion under s 159A to declare 153 days of imprisonment already served
Penalties and Sentences Act 1992 (Qld) s 156A, s 159A
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, applied
R v Amato[2013] QCA 158, considered
R v Miller [2015] QCA 94, considered
R v Taki[2015] QCA 60, considered
R v Wilson[2022] QCA 18, cited
R v Whitely
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- AGLC
- R v Braeckmans [2022] QCA 25
- Case
- [2022] QCA 25
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the sentencing judge had correctly exercised his discretion under s 159A of the Penalties and Sentences Act 1992 (Qld) by declaring that 153 days of the applicant's pre-sentence custody should be counted as time already served. The court considered whether the provisions of s 156A(2) and s 159A could be interpreted in a manner that would give effect to harmonious goals, given the apparent tension between the requirement for the new sentence terms to commence in June 2021 and the declaration of pre-sentence custody time already served. The court also examined whether the sentencing judge had erred in his interpretation and application of these statutory provisions.
The court found that the sentencing judge had indeed erred in exercising his discretion under s 159A by declaring that 153 days of the applicant's pre-sentence custody should be counted as time already served. The court concluded that the provisions of s 156A(2) and s 159A could be interpreted in a manner that gave effect to harmonious goals. The court held that the sentencing judge should have declared that the applicant had served pre-sentence custody without counting any of it as time already served under the new sentence. As a result, the court allowed the appeal and varied the orders made by the District Court. The applicant's term of imprisonment was reduced, certain declarations were deleted or modified, and the parole eligibility date was fixed.
Orders
Orders of the court
1. Grant leave to appeal.
2. Allow the appeal.
3. Vary the orders made in the District Court on 6 November 2020 by:
a. varying the term of imprisonment of nine years, imposed on count 4 charged by indictment number 4332 of 2020, to a term of seven years’ imprisonment;
b. deleting the declaration that the applicant had committed a serious violent offence;
c. removing the declaration that the applicant had served pre-sentence custody and declaring instead that the applicant was held for a total of 392 days of pre-sentence custody between 10 October 2019 and 6 November 2020 and that none of that time is taken to be imprisonment already served under the sentence;
d. fixing the applicant’s parole eligibility date as 1 October 2023.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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