R v DAB - [2022] QCA 268

SUPREME COURT OF QUEENSLAND

CITATION:

R v DAB [2022] QCA 268

PARTIES:

R
v
DAB
(applicant)

FILE NO/S:

CA No 67 of 2022
DC No 101 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich – Date of Sentence: 7 April 2022 (Byrne KC DCJ)

DELIVERED ON:

Date of Orders: 20 September 2022
Date of Publication of Reasons: 23 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

16 September 2022

JUDGES:

Mullins P, Dalton JA and North J

ORDERS:

Date of orders: 20 September 2022

1.   Application for leave to appeal granted.

2.   Appeal allowed.

3.   Vary the sentence imposed on the applicant by the primary judge on 7 April 2022 by substituting “2 years” for “2 years and 6 months” as the period for which the applicant is imprisoned for each count.

4.   The orders otherwise made by the primary judge on 7 April 2022 are confirmed.

5. Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) it is stated that the applicant has spent 643 days spent in presentence custody between 16 December 2020 and 19 September 2022 and it is declared that no time is taken to be imprisonment already served under the sentences.

6.   Reasons for the orders to be published at a later date.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to three counts of incest – where the applicant was sentenced to two and a half years’ imprisonment on each count, to be served concurrently with each other but cumulatively upon sentences previously imposed for offending against the same complainant – where 477 days presentence custody was not declared as time already served as contemplated by s 159A of the Penalties and Sentences Act 1992 (Qld) – where the sentencing remarks stated that his Honour was constrained from making a declaration in respect of the cumulative sentence by the decision of R v Braeckmans [2022] QCA 25 – where Braeckmans concerned an offender on parole, engaging s 156A of the PSA, requiring that the sentence be served cumulatively – where the applicant was not on parole when he committed the incest offences – where the sentencing judge failed to consider whether or not to declare some part of the presentence custody of 477 days as time served – where there was an error of principle that required the applicant to be resentenced

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, cited
R v Braeckmans [2022] QCA 25, cited
R v SDH[2019] QCA 134, cited
R v Staines[2022] QCA 187, cited

COUNSEL:

C R Smith for the applicant
C M Cook for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: Argument was heard in respect of the applicant’s application for leave to appeal on 16 September 2022. At the…

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 DAB

Details

AGLC: R v DAB [2022] QCA 268
Case: [2022] QCA 268
Decision Date: 20 September 2022

CaseChat Overview and Summary

The case of R v DAB involved an appeal against sentence. The applicant had pleaded guilty to three counts of incest and was sentenced to two and a half years' imprisonment on each count, to be served concurrently with each other but cumulatively with sentences previously imposed for offending against the same complainant. The applicant had already spent 477 days in presentence custody, but this was not declared as time already served as required by section 159A of the Penalties and Sentences Act 1992 (Qld). The sentencing judge was constrained from making a declaration in respect of the cumulative sentence by the decision of R v Braeckmans, which concerned an offender on parole. However, the applicant was not on parole when he committed the incest offences, and there was an error of principle that required the applicant to be resentenced.

The legal issue in this case was whether the sentencing judge erred in failing to consider whether or not to declare some part of the presentence custody of 477 days as time served. The Court of Appeal found that there was indeed an error of principle, as the sentencing judge was required to consider making a declaration under section 159A of the Penalties and Sentences Act 1992 (Qld). The Court held that the failure to do so was an error of principle that required the applicant to be resentenced. The Court also noted that the decision in R v Braeckmans did not constrain the sentencing judge from making such a declaration, as the discretionary power under section 159A must be exercised consistently with the requirements of the Act.

The Court of Appeal allowed the appeal and varied the sentence imposed on the applicant. The Court substituted "2 years" for "2 years and 6 months" as the period for which the applicant is imprisoned for each count. The Court also confirmed the orders otherwise made by the primary judge on 7 April 2022. Pursuant to section 159A of the Penalties and Sentences Act 1992 (Qld), it was stated that the applicant had spent 643 days spent in presentence custody between 16 December 2020 and 19 September 2022, and it was declared that no time is taken to be imprisonment already served under the sentences. The reasons for the orders were to be published at a later date.

Orders

Orders of the court

Date of orders: 20 September 2022

1. Application for leave to appeal granted.

2. Appeal allowed.

3. Vary the sentence imposed on the applicant by the primary judge on 7 April 2022 by substituting “2 years” for “2 years and 6 months” as the period for which the applicant is imprisoned for each count.

4. The orders otherwise made by the primary judge on 7 April 2022 are confirmed.

5. Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) it is stated that the applicant has spent 643 days spent in presentence custody between 16 December 2020 and 19 September 2022 and it is declared that no time is taken to be imprisonment already served under the sentences.

6. Reasons for the orders to be published at a later date.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The sentencing judge imposed a sentence of two years and six months upon each of the three counts of incest. The sentences were ordered to be served concurrently with each other but cumulatively upon the sentences imposed on 19 October 2020. A parole eligibility date was fixed at 7 April 2022 and convictions were recorded. The effective sentence therefore to which the applicant was sentenced on 19 October 2020 and then on 7 April 2022 was seven years and six months.Failure to consider making any pre-sentence custody declaration – an error By the day of sentence (7 April 2022) the applicant had been held in custody on remand for some 477 days from 16 December 2020.[3] He was also serving the sentence imposed on 19 October 2020. His Honour did not make a declaration with respect to the pre-sentence custody of 477 days contemplated by s 159A of the PSA observing in the sentencing remarks that he was constrained from making such a declaration in respect of the cumulative sentence he was imposing by the decision of R v Braeckmans.[4][3]See AB p 49.[4]R v Braeckmans [2022] QCA 25. With respect, Braeckmans did not constrain the sentencing judge from making such a declaration. Section 159A mandates that a declaration, whether it be one in terms complying with s 159A(3) or one in terms of s 159A(3B) must be made.[5] The offences which were appealed in Braeckmans were committed by the offender when on parole. Thus s 156A of the PSA was engaged requiring that the sentence of imprisonment be served cumulatively.[6] It was in this context that the discretion conferred by s 159A was modified as explained by McMurdo JA (with whom Sofronoff P and Kelly J agreed) in Braeckmans:[7]“[30] Section 156A leaves the sentencing court with no discretion: in circumstances which engage the section, the sentencing court must impose a cumulative sentence. On the other hand, s 159A provides a discretion to the sentencing court. Where s 159A is engaged, the sentencing court may declare the whole of the time on remand for the subject offence as time spent in custody in serving the sentence, or it may declare some or none of it as time served. Because s 159A does not mandate an allowance of pre-sentence custody, but instead leaves that to the sentencing court’s discretion, the two sections can be construed so that they give effect to harmonious goals. The discretionary power under s 159A is an element of the court’s sentencing power, so that it must be exercised consistently with the requirements of the Act, including the specific requirement of s 156A. Neither the terms of s 159A nor the explanatory note provide any indication of an intention that the amendment to s 159A was to allow sentencing courts to qualify the mandatory terms of s 156A.[31]Consequently, in a case such as the present one, a sentencing judge must exercise the power under s 159A to avoid the consequence that a cumulative term of imprisonment will become in part a concurrent term. A declaration of pre-sentence custody in the prisoner’s favour should not have been made in the present case. Instead it should have been declared, pursuant to s 159A(3B)(c), that no time is taken to be imprisonment already served.”(Footnotes omitted)[5]See the reference to “must” in both s 159A(3) and s 159A(3B).[6]See the reference to “must” in s 156A(2).[7]R v Braeckmans [2022] QCA 25 at [30]-[31]. See also R v Staines [2022] QCA 187 at [24]-[25].

CITATION:	R v DAB [2022] QCA 268
PARTIES:	R v DAB (applicant)
FILE NO/S:	CA No 67 of 2022 DC No 101 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich – Date of Sentence: 7 April 2022 (Byrne KC DCJ)
DELIVERED ON:	Date of Orders: 20 September 2022 Date of Publication of Reasons: 23 December 2022
DELIVERED AT:	Brisbane
HEARING DATE:	16 September 2022
JUDGES:	Mullins P, Dalton JA and North J
ORDERS:	Date of orders: 20 September 2022 1. Application for leave to appeal granted. 2. Appeal allowed. 3. Vary the sentence imposed on the applicant by the primary judge on 7 April 2022 by substituting “2 years” for “2 years and 6 months” as the period for which the applicant is imprisoned for each count. 4. The orders otherwise made by the primary judge on 7 April 2022 are confirmed. 5. Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) it is stated that the applicant has spent 643 days spent in presentence custody between 16 December 2020 and 19 September 2022 and it is declared that no time is taken to be imprisonment already served under the sentences. 6. Reasons for the orders to be published at a later date.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to three counts of incest – where the applicant was sentenced to two and a half years’ imprisonment on each count, to be served concurrently with each other but cumulatively upon sentences previously imposed for offending against the same complainant – where 477 days presentence custody was not declared as time already served as contemplated by s 159A of the Penalties and Sentences Act 1992 (Qld) – where the sentencing remarks stated that his Honour was constrained from making a declaration in respect of the cumulative sentence by the decision of R v Braeckmans [2022] QCA 25 – where Braeckmans concerned an offender on parole, engaging s 156A of the PSA, requiring that the sentence be served cumulatively – where the applicant was not on parole when he committed the incest offences – where the sentencing judge failed to consider whether or not to declare some part of the presentence custody of 477 days as time served – where there was an error of principle that required the applicant to be resentenced Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, cited R v Braeckmans [2022] QCA 25, cited R v SDH[2019] QCA 134, cited R v Staines[2022] QCA 187, cited
COUNSEL:	C R Smith for the applicant C M Cook for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent