R v Edwards

[2005] QDC 384

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Edwards [2005] QDC 384

PARTIES:

THE QUEEN

v

KEVIN RAYMOND EDWARDS

FILE NO/S:

Indictment No 461/2001

DIVISION:

Criminal

PROCEEDING:

Application to reopen a sentence pursuant to s 188 Penalties and Sentences Act

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

2 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

14 November 2005

JUDGE:

Nase DCJ

ORDER:

CATCHWORDS:

COUNSEL:

Ms J Hughes for the Crown

Mr C Wilson for the accused

SOLICITORS:

Director of Public Prosecutions for the Crown

Affleck Lawton Lawyers for the accused

1. On 4 April 2003 Kevin Raymond Edwards was sentenced to an effective term of 15 years imprisonment for a series of offences.  This application is to reopen the sentence in order to correct a declaration of 438 days pre-sentence custody which is part of the original sentencing order[1].  The prosecuting authorities now realise the correct period of pre-sentence custody is 16 days (not the 438 days).

   [1]The period of pre-sentence custody was declared to run from 15 October 2001 to the date of sentence, 4 April 2003 (less a period when he was in custody serving a default sentence of imprisonment).

1. The effect of the proposed correction is that Edwards’ full-term release date will be extended by the 422 days pre-sentence custody wrongly declared to be time served under the original sentencing order.

1. Mr Wilson, who appeared for Edwards, accepted the correct period of pre‑sentence custody is a period of 16 days.  However, because of the time that has passed since the original sentence order, he submitted the court should not at this time exercise the discretion to reopen and correct the sentence[2].

   [2]Section 188 Penalties and Sentences Act (PS Act) allows the sentence to be reopened on application within 28 days of the original sentence order or within any time allowed by the court.

1. The first step is to explain the error.  Ms Hughes prepared a chronology which, with some alterations, assists to explain the error made:

Event Date	Event	Notes/Comment
06/04/1998	Sentenced in Liverpool District Court (NSW). Sentence of 4 years imprisonment to commence on 15/10/1997.  To be released on parole on 14/10/1999 until 14/10/2001.
14/10/1999	Released on parole under NSW sentence order.
11/12/1999	Queensland offences committed (sentenced 04/04/2003). The commission of these offences breached his parole.	A period of 520 days extending from the date of the Queensland offences to the cancellation of his parole was wrongly counted as service of the balance of the NSW sentence which he was required to serve on cancellation of parole.
25/02/2000	Parole registered in Queensland (s10 (02) Parole Orders (Transfer) Act 1984).
15/05/2001	Arrested on Queensland offences (Edwards remanded in custody until sentenced on 04/04/2003).
28/09/2001	Parole cancelled (s150 Corrective Services Act 2000).
14/10/2001	End date of NSW sentence under original sentence order.
18/03/2003	Actual end date of NSW sentence as calculated under Corrective Service Act 2000.
04/04/2003	Sentenced for Queensland offences committed on 11/12/1999

1. On registration of the NSW parole order in Queensland on 25 February 2000, the NSW order was converted to and had effect as a corresponding Queensland order under the Corrective Services Act (s10(2) Parole Orders (Transfer) Act 1984). Under the Corrective Services Act (CS Act), on cancellation of a converted parole order a parolee becomes liable to serve a term of imprisonment equal to the part of the original sentence on which he was released on parole.  In Edwards’ case, on cancellation of his parole, he became liable to serve a term of two years imprisonment[3].

   [3]However in calculating the sentence the period of time from release on parole to the date of the Queensland offences (the breaching event) is treated as time served: s 152 CS Act.

1. The error made at the time of sentence is that in calculating the pre-sentence custody, the NSW sentence was wrongly thought to have ended on 14 October 2001.  In fact, the period of time from the date he committed the Queensland offences (11 December 1999) to the date his parole was formally cancelled (28 September 2001) is not, by force of the CS Act, counted as service of the balance of the NSW sentence[4].  When this period of time is brought into account, the NSW sentence ended on 18 March 2003.  As the period of pre-sentence custody declarable as time served on the 4 April 2003 is limited to time held in custody on remand for the Queensland offences, and for no other reason, only the period from the end of the NSW sentence can be declared as time served for the Queensland offences[5].

   [4]See s152 (1) (f), (2) (c) CS Act.

   [5]S161 PS Act

1. The error originated in a letter from the Queensland Corrective Services Commission (QCSC) to the DPP dated 16 October 2001.  At sentence, the prosecutor relied on this advice when informing the court of the relevant periods of pre-sentence custody available to be declared under the Penalties and Sentences Act (PS Act).  After sentence, the QCSC wrote to the DPP on 8 March 2004 in effect questioning the correctness of its own earlier advice to the DPP.  The application to reopen the sentence, however, was not made in court until 30 August 2005.  At that time the application was adjourned to allow Edwards the opportunity of obtaining legal representation.

1. The hearing ultimately proceeded on 14 November 2005.  At the November hearing the only explanation offered for the delay in bringing an application to reopen the sentence was that delays in communication occurred between the offices of the DPP and the QCSC.

1. Despite the absence of a satisfactory explanation for the delay in bringing the application to reopen the sentence, I am satisfied the error should be corrected.  The error is a substantial one and not to correct it may tend to undermine confidence in the administration of justice.  Secondly, the prisoner is still in the early stages of serving a lengthy sentence.

1. On reopening the sentence the question arises as to whether the original sentence orders should be adjusted to take into account the period of pre-sentence custody which cannot be the subject of a declaration.

1. The sentencing policies underpinning the PS Act suggest the sentence for the Queensland offences should not be served concurrently with the sentence to be served on cancellation of his parole.  The PS Act requires that when an offence is committed while an offender is on parole for another offence, any sentence of imprisonment imposed for the breaching offence must be ordered to be served cumulatively with any other term of imprisonment the offender is then liable to serve[6].  Giving effect to the underlying policy of the Act, it would not be appropriate to mitigate the sentence to take into account as pre‑sentence custody the period of time Edwards was serving out the balance of the New South Wales sentence.

   [6]156A  PS Act.

1. In all the circumstance the appropriate course is to reopen the original sentence order, set aside the pre-sentence custody declaration and substitute the following pre-sentence custody declaration:

“You have been held in pre-sentence custody on and from 19 March 2003 to and including 4 April 2003.  That is a period of 16 days.  That period is declared to be time served under the sentences imposed today.”