R v Eru-Guthrie

Case [2021] QDC 174

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Eru-Guthrie [2021] QDC 174

PARTIES:

THE QUEEN

(respondent)

v

JWUAN DAVID ARAMA ERU-GUTHRIE

(applicant)

FILE NO:

Indictment 52/2021

PROCEEDING:

Application to reopen sentence proceeding

DELIVERED ON:

10 August 2021

DELIVERED AT:

Maroochydore

HEARING DATE:

6 August 2021

JUDGE:

Cash QC DCJ

ORDERS:

1.     The sentence proceeding of 13 and 15 April 2021 is reopened;

2.     The applicant is resentenced;

3.     Set aside the orders made on 13 and 15 April 2021;

4.     The applicant is sentenced to imprisonment for three years, to commence on 13 April 2021, and the date for the applicant’s release on parole is fixed as 1 October 2021;

5.     It is declared the applicant had been held in presentence custody for 254 days between 2 August 2020 and 12 April 2021;

6. Pursuant to section 159A(3B) of the Penalties and Sentences Act 1992 (Qld) none of this time is taken to be time already served under the sentence.

CATCHWORDS:

CRIMINAL LAW – SENTENCING – SENTENCING PROCEDURE – REOPENING – Where the applicant was sentenced to a term of imprisonment with a parole eligibility date after serving 14 months – Where the applicant made an application to reopen sentence – Where the applicant submits his parole application faced significant delay – Where the applicant further submits that this cause of delay existed at the time of sentencing – Whether a clear factual error of substance was made

LEGISLATION:

Corrective Services Act 2006 (Qld), s 180, s 193
Criminal Law Amendment Act 1997 (Qld)
Criminal Practice Rules 1999 (Qld), r 4, r 10, r 16
Judicial Review Act 1991 (Qld)
Penalties and Sentences Act 1992 (Qld), s159A, s 188

CASES:

Attorney-General v Woodford [1999] 1 Qd R 244
R v Cassar; ex part Attorney-General [2002] 1 Qd R 386
R v DC [1999] QCA 486
R v Kelly [2001] QCA 292
R v MacKenzie [2002] 1 Qd R 410
R v Ronkovich [2007] QCA 193

APPEARANCES:

L D Reece for the applicant
S R Drinovac for the respondent Crown
SOLICITORS: Legal Aid Queensland for the applicant
Office of the Director of Public Prosecutions for the respondent Crown

Introduction

  1. On 13 April this year, the applicant, Jwuan David Arama Eru-Guthrie, appeared before me and pleaded guilty to a single offence of unlawfully doing grievous bodily harm. After hearing submissions, I ordered that the applicant be imprisoned for a term of four years and I fixed a parole eligibility date[1] of 1 December 2021. A period of detention in pre-sentence custody was also declared to be time already served under the sentence imposed. The parole eligibility date of 1 December 2021 was sixteen months after the applicant was first taken into custody. This was an error. In my sentencing remarks I had said it was appropriate to fix a parole eligibility date that was fourteen months after the applicant had been taken into custody. Soon after the sentence hearing the miscalculation of dates was brought to my attention and as a result, on…

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Details
AGLC
R v Eru-Guthrie [2021] QDC 174
Case
[2021] QDC 174
Decision Date

CaseChat Overview and Summary

The case of R v Eru-Guthrie involved an application to reopen a sentencing proceeding. The applicant, Eru-Guthrie, had been sentenced to imprisonment for four years, with parole eligibility after serving 14 months. He subsequently made an application to reopen the sentence, submitting that his parole application faced significant delay and that this delay was present at the time of the original sentencing. The central issue was whether a clear factual error of substance was made during the sentencing process.

The court had to determine the factual basis of the original sentence, the proper approach to reopening a proceeding under section 188, and whether the sentence was decided on a clear factual error. The applicant argued that the delay in the parole process meant that his parole application would not be decided until well after the parole eligibility date. The respondent contended that the evidence did not demonstrate a clear factual error, as the Parole Board's prediction was expressed in terms of probability rather than certainty.

In making its decision, the court considered the evidence presented, which included affidavits and correspondence from the Parole Board of Queensland. The court found that the evidence demonstrated a significant delay in the parole process, which was a factor present at the time of sentencing. Consequently, the court concluded that a clear factual error of substance had been made in sentencing. As a result, the court ordered the reopening of the sentence proceeding, resentenced the applicant to imprisonment for three years, and fixed his parole release date as 1 October 2021. The court also clarified that the time spent in pre-sentence custody would be taken into account but not as time already served under the new sentence.

The final orders of the court were to reopen the sentence proceeding, resentence the applicant, set aside the previous orders, and declare that the applicant had been held in presentence custody for 254 days. None of this time would be considered as time already served under the new sentence.

Orders

Orders of the court

1. The sentence proceeding of 13 and 15 April 2021 is reopened;

2. The applicant is resentenced;

3. Set aside the orders made on 13 and 15 April 2021;

4. The applicant is sentenced to imprisonment for three years, to commence on 13 April 2021, and the date for the applicant’s release on parole is fixed as 1 October 2021;

5. It is declared the applicant had been held in presentence custody for 254 days between 2 August 2020 and 12 April 2021;

6. Pursuant to section 159A(3B) of the Penalties and Sentences Act 1992 (Qld) none of this time is taken to be time already served under the sentence.

Background

Background to the litigation

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Evidence

Evidence Before The Court

On 6 August 2021 I heard submissions in relation to the application. On that day I ordered the sentence proceeding be reopened, I resentenced the applicant to imprisonment for three years and I fixed his parole release date as 1 October 2021. The period of time the applicant spent in pre-sentence custody was taken into account but not taken to be time already served under the sentence imposed. These are my reasons for doing so.Evidence relied upon at the hearing of the application to reopen the proceeding It is convenient to commence with a summary of the evidence relied upon by the applicant. This consisted of two affidavits of Loren Fabian to which was exhibited some correspondence from the Parole Board of Queensland. The effect of the evidence was that the Parole Board had received the applicant’s parole application on 20 April 2021. An email from the Director of Legal Services of the Parole Board told the applicant’s lawyers that:A prisoner lodging a parole application [on 20 April 2021] is likely to have it decided in December 2021. A third piece of correspondence from the Parole Board stated that at the end of May 2021 there were 4,399 ‘outstanding files’ which included 2,084 applications for parole. It was said that a prisoner who made an application on 21 June 2021 would not be likely to have it decided before February 2022. The applicant submitted that this evidence demonstrated the applicant would not have his application for parole decided until well after 1 October 2021. Further, it was said that this was the position at the time the sentence was decided, just five days before the application for parole was received by the Board. On this basis it was submitted the sentence was decided on a clear factual error: that I erroneously thought the applicant’s parole application could be considered about the time set as his parole eligibility date. While the respondent opposed the application, it was only on the basis that the evidence did not demonstrate a ‘clear’ factual error. It was submitted that the prediction of a delay until December 2021 was expressed in terms of probability rather than certainty and, on that basis, could not establish a clear error. In order to determine the application, it was necessary to consider a number of matters. First, what was the factual basis upon which the sentence was decided? Secondly, what is the proper approach to an application to reopen a proceeding pursuant to section 188? Thirdly, applying that approach, was the sentence decided on a clear factual error of substance? Finally, if that question is answered affirmatively, should the sentence be reopened and a different sentence imposed?What was the factual basis for the sentence? In sentencing the applicant, I did not accept a submission made on his behalf that a sentence of three years’ imprisonment was appropriate. It was my view that a sentence of imprisonment for four years with parole eligibility after serving 14 months properly reflected the circumstances of the offence and the applicant’s personal circumstances. I said:That, I hope, will give you the best possible chance to improve yourself and to not get into trouble when you are released. It also gives to the parole board the power to consider all of the relevant circumstances at the time to decide exactly when and how you might be released from jail.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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