R v DAB

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.