R v Carter - [2016] QSC 86

SUPREME COURT OF QUEENSLAND

CITATION:

R v Carter [2016] QSC 86

PARTIES:

R

(respondent)

v
STEPHEN WAYNE CARTER

(applicant)

FILE NO:

Indictment No 587 of 2000

DIVISION:

Trial Division

PROCEEDING:

Application to reopen sentence

DELIVERED ON:

14 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

1 April 2016

JUDGE:

Mullins J

ORDER:

The application to reopen the sentence imposed on 17 July 2003 is refused.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – OTHER MATTERS – where the applicant applied to reopen a sentence of life imprisonment for murder – where a declaration was made that 54 days spent in presentence custody be deemed time already served under the sentence – where the applicant submitted that a further 487 days of custody should have been declared time already served under the sentence – where the 487 days in custody was not presentence custody, but custody that related to sentences being served by the applicant for other offences – whether there was a discretion to make a declaration for presentence custody not otherwise declarable

Justice and Other Legislation Amendment Act 2004 (Qld), s 80, s 83
Penalties and Sentences Act 1992 (Qld), s 159A, s 188, s 212

R v Carter [2002] QCA 431, related
R v Carter [2003] QCA 515, related
R v Guthrie (2002) 135A Crim R 292; [2002] QCA 509, considered
R v McCusker [2015] QCA 179, considered

COUNSEL:

The applicant appeared in person

M T Whitbread for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the respondent

Mr Carter was found guilty after trial of one count of murder. I sentenced him on 17 July 2003 to life imprisonment. A declaration was made that 54 days spent in presentence custody between 14 September 2002 and 6 November 2002 be deemed time already served under the sentence.
That was Mr Carter’s retrial for the offence of murder. At the first trial, Mr Carter pleaded guilty to aiding one Smyth in killing himself and to one count of supply of the dangerous drug heroin to Smyth, but was found guilty after trial of the offence of murder. He successfully appealed that conviction and the retrial was ordered: R v Carter [2002] QCA 431.
At the first trial Mr Carter was sentenced to imprisonment for one year on the supply dangerous drug, imprisonment for two years on the aiding suicide, and life imprisonment for murder. A declaration was made that 70 days spent in presentence custody between 24 March 2000 and 1 June 2000 be imprisonment already served under the sentence. At the time that declaration was made, the period of 70 days was credited as presentence custody for all three sentences that were imposed at the same time and were being served concurrently. The date that Mr Carter would have been released from custody for the offence of aiding suicide (but for serving the concurrent sentence of life imprisonment for murder) would have been 14 September 2002. When his appeal against conviction for…

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 Carter

Details

AGLC: R v Carter [2016] QSC 86
Case: [2016] QSC 86
Decision Date: 14 April 2016

CaseChat Overview and Summary

In the case of R v Carter, the applicant sought to reopen his sentence of life imprisonment for murder, arguing that 487 days spent in custody should be deemed time already served under the sentence. The applicant submitted that a further 487 days of custody should have been declared as time already served, despite these days not being presentence custody for the murder offence. The legal issues centred on whether there was a discretion to make a declaration for presentence custody not otherwise declarable, and if the applicant's argument about the totality principle and concurrent sentences applied.

The court examined the statutory framework, particularly Section 161 of the Punishment and Sentencing Act (PSA), which was in force before the 2004 amendments. It concluded that the period in question was attributable to sentences for other offences and not presentence custody for the murder offence. The court noted that the applicant had misunderstood the statutory language and the purpose of the words "otherwise orders" at the end of Section 161. There was no discretion to make a declaration for presentence custody if it was not declarable under the terms of the provision. The court found that the applicant's arguments about the totality principle and concurrent sentences did not apply as he was subject to a mandatory sentence for murder.

Ultimately, the court refused the application to reopen the sentence, holding that there was no basis under the legislation to declare the 487 days as time already served for the murder offence. The applicant's appeal against the conviction at the first trial had resulted in the loss of credit for the time served concurrently with other sentences, which could not be reclaimed for the murder offence under the statutory framework. The applicant's request for the additional days to be declared as time already served was denied.

Orders

Orders of the court

The application to reopen the sentence imposed on 17 July 2003 is refused.

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

He also argues that he has been penalised, as a result of exercising his legal right to appeal after the first trial and being granted a new trial which will result in his serving 16 years 4 months before he becomes eligible for parole, instead of the period of 15 years that he should serve in respect of the sentence of life imprisonment before he is eligible for parole. Should Mr Carter have received the benefit of a declaration for a further 487 days as presentence custody? Section 161 of the PSA (as it stood before the 2004 Act) was the source of power for making the presentence custody declaration at the retrial. The effect of Mr Carter’s successful appeal against the conviction of murder at the first trial was that the sentence for life imprisonment that he had served concurrently with the sentences for supply and aiding suicide no longer counted as time served for the offence of murder. The entire period of 487 days for which Mr Carter now seeks credit was attributable to the other sentences imposed at the first trial. When Mr Carter came to be sentenced again for the offence of murder at the retrial, the period prior to 14 September 2002 during which he had been imprisoned was not presentence custody for the offence of murder within the meaning of s 161(4). As Mr Whitbread of counsel points out in his written submissions, Mr Carter’s arguments do not take into account that there did exist a different reason for the prior period of imprisonment which were the other sentences imposed at the first trial. Although in a colloquial sense that imprisonment prior to 14 September 2002 was “presentence” in respect of the sentence imposed for the offence of murder at the retrial, it was not “presentence” in the sense in which that term is understood for the purpose of the then s 161 of the PSA. Mr Carter misunderstands the purpose of the words “otherwise orders” at the conclusion of s 161. That provision mandates that a declaration for presentence custody must be made by the court, if there is declarable presentence custody, unless the sentencing court otherwise orders. There is no discretion conferred to make a declaration in respect of presentence custody, where it is not declarable in accordance with the terms of the provision. In the normal course, where an offender who is being sentenced has been held on remand, but cannot get the benefit of presentence custody which is not otherwise attributable to any sentence, but for some other reason is not declarable under s 159A, it is usual for the sentencing judge to take that non-declarable presentence custody into account by reducing the sentence and/or the period before which the offender is eligible for parole. In the case of a sentence for murder where both the head sentence and the period which must be served before eligibility for parole arises are mandatory, there is no room for this alternative course for dealing with non-declarable presentence custody. The arguments advanced by Mr Carter in respect of the totality principle and concurrent sentences have no application to his situation which arises as a result of the imposition of a mandatory sentence of life imprisonment for the offence of murder at the retrial where the then s 161 did not permit a declaration to be made in respect of the period of 487 days that Mr Carter served on account of the sentences for the other offences committed at the same time as the murder.

CITATION:	R v Carter [2016] QSC 86
PARTIES:	R (respondent) v STEPHEN WAYNE CARTER (applicant)
FILE NO:	Indictment No 587 of 2000
DIVISION:	Trial Division
PROCEEDING:	Application to reopen sentence
DELIVERED ON:	14 April 2016
DELIVERED AT:	Brisbane
HEARING DATE:	1 April 2016
JUDGE:	Mullins J
ORDER:	The application to reopen the sentence imposed on 17 July 2003 is refused.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – OTHER MATTERS – where the applicant applied to reopen a sentence of life imprisonment for murder – where a declaration was made that 54 days spent in presentence custody be deemed time already served under the sentence – where the applicant submitted that a further 487 days of custody should have been declared time already served under the sentence – where the 487 days in custody was not presentence custody, but custody that related to sentences being served by the applicant for other offences – whether there was a discretion to make a declaration for presentence custody not otherwise declarable Justice and Other Legislation Amendment Act 2004 (Qld), s 80, s 83 Penalties and Sentences Act 1992 (Qld), s 159A, s 188, s 212 R v Carter [2002] QCA 431, related R v Carter [2003] QCA 515, related R v Guthrie (2002) 135A Crim R 292; [2002] QCA 509, considered R v McCusker [2015] QCA 179, considered
COUNSEL:	The applicant appeared in person M T Whitbread for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the respondent