R v DC

[1999] QCA 486

SUPREME COURT OF QUEENSLAND

CITATION:	R v DC [1999] QCA 486
PARTIES:	R v DC
(Applicant/appellant)
FILE NO/S:	CA No 267 of 1999 DC No 124 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave to appeal against sentence
ORIGINATING  COURT:	District Court at Cairns
DELIVERED ON:	24 November 1999
DELIVERED AT:	Brisbane
HEARING DATE:	5 November 1999
JUDGES:	McMurdo P, Thomas JA and Williams J (diss)
ORDER:	Application granted, appeal allowed, set aside order and re-sentence of 16 July 1999 in respect of the offence of 9 June 1998 in Indictment Number 124 of 1999.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – OTHER CONVICTIONS OF OFFENDER
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – whether sentencing judge "imposed a sentence decided on a clear factual error of substance" within meaning of s 188(1)(c) of the Penalties & Sentences Act 1992 – whether s 188(1)(c) satisfied when an offender is subsequently convicted of offences that were committed before the original sentencing process – proof of prior criminality for sentencing purposes only established by proving offender's actual convictions – requirements of s 188 not satisfied – sentence to be fashioned to achieve appropriate totality – possible to include cumulative component consistently with principles in R v Holder & Johnston [1983] 3 NSWLR 245; (1983) 13 A Crim R 375
Penalties and Sentences Act 1992, s 9, s 188 Justices Act 1886, s 147A
Boyd v Sandercock, ex parte Sandercock [1990] 2 Qd R 26, considered R v D [1996] 1 Qd R 363, considered R v Deacon (1993) 65 A Crim R 261, considered R v Holder & Johnston [1983] 3 NSWLR 245, (1983) 13 A Crim R 375, applied R v Thorpy CA No 126 of 1995, 16 June 1995, considered R v Williams, ex parte Biggs [1989] 1 Qd R 594, considered Veen v The Queen (No 2) (1988) 164 CLR 465, applied
COUNSEL:	Ms K McGinness for the applicant/appellant Mr T Winn for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO P: I have read the reasons for judgment of Thomas JA and those of Williams J. Williams J has set out the facts and carefully traced the history of s 188 of the Penalties & Sentences Act 1992.

2. The question for this Court is whether a judge, who has sentenced an offender on the basis of an accurate criminal history at the time of sentence, and the offender subsequently pleads guilty to a further offence which occurred before the offence the subject of the first sentence, originally "imposed a sentence decided on a clear factual error of substance" under s 188(1)(c) of the Penalties & Sentences Act 1992, entitling…