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R v Fabre

R v Fabre

Case [2008] QCA 386 4 December 2008

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Fabre [2008] QCA 386

PARTIES:

R
v
FABRE, Hugo Charles
(applicant/appellant)

FILE NO/S:

CA No 270 of 2008
SC No 162 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

1 December 2008

JUDGES:

Keane, Muir and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application for leave to appeal granted. 1.

Appeal allowed. 2.

Vary the sentence on count 1 by substituting
20 January 2009 for the parole release date of
19 June 2009 fixed by the sentencing judge. 3.

Vary the sentence on count 2 by substituting the period of three months for the period of eight months ordered by the sentencing judge as the period of time after which the term of imprisonment is to be suspended. 4.

In all other respects confirm the sentences imposed by the sentencing judge.5.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – TIME SPENT IN CUSTODY – where applicant sentenced for two offences – where applicant had been held in pre-sentence custody prior to sentencing in relation to the relevant two offences and for a number of other offences – where the pre-sentence custody could not be declared pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) – where the sentencing judge did not exercise his discretion to take the pre-sentence custody into account in arriving at the appropriate sentences to impose – where the sentencing judge observed that it was likely that there would be a future situation where the applicant would be given credit for the time he had served – whether the sentencing judge ought to have taken the pre-sentence custody into account in arriving at the appropriate sentences to impose

Penalties and Sentences Act 1992 (Qld), 159A

R v Ainsworth[2000] QCA 163, applied
R v Cannon [2005] QCA 41, applied
R v Renzella [1997] 2 VR 88, referred to
R v Skedgwell [1999] 2 Qd R 97; [1998] QCA 93, cited
R v Wade [2005] VSCA 276, cited

COUNSEL:

D J Walsh for the applicant/appellant
M J Copley for the respondent

SOLICITORS:

A W Bale & Son for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: I agree with the reasons for judgment prepared by Fraser JA and with the orders proposed by his Honour.

MUIR JA: I agree with the reasons of Fraser JA and with the orders proposed by his Honour.

FRASER JA: On 20 October 2008 the applicant was convicted on his pleas of guilty of possession of a dangerous drug in excess of two grams (count 1) and possession of things used in the commission of the crime of possessing a dangerous drug (count 2). On count 1 he was sentenced to two and a half years imprisonment with a parole release date…

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 Fabre

Details

AGLC: R v Fabre [2008] QCA 386
Case: [2008] QCA 386
Decision Date: 4 December 2008

CaseChat Overview and Summary

The matter of R v Fabre involved the applicant who was sentenced for two offences. Prior to sentencing, the applicant had been held in pre-sentence custody in relation to these offences as well as a number of others. The pre-sentence custody could not be declared pursuant to section 159A of the Penalties and Sentences Act 1992 (Qld). The sentencing judge did not exercise his discretion to take the pre-sentence custody into account in arriving at the appropriate sentences to impose, despite the judge's observation that it was likely there would be a future situation where the applicant would be given credit for the time served. The applicant sought leave to appeal, arguing that the sentencing judge ought to have taken the pre-sentence custody into account.

The central legal issue in this appeal was whether the sentencing judge should have taken into account the time spent in pre-sentence custody when determining the appropriate sentences to impose. The applicant contended that the judge’s failure to consider this factor constituted a material error of law, as it could have resulted in a more lenient sentence. The Crown argued that the sentencing judge's discretion in this regard was not mandatory and that the judge was entitled to make an independent assessment of the appropriate sentences.

The court found that the sentencing judge did indeed have a discretion to take pre-sentence custody into account, but this discretion was not absolute. The court held that the failure to consider the pre-sentence custody amounted to a material error of law. The court further held that the error was not trivial and had a substantial impact on the sentences imposed. As such, the court allowed the appeal and varied the sentences. The parole release date on count 1 was substituted from 19 June 2009 to 20 January 2009, and the period of the suspended sentence on count 2 was reduced from eight months to three months. The rest of the sentences remained as imposed by the sentencing judge.

In summary, the court granted the application for leave to appeal and allowed the appeal. The sentences on count 1 and count 2 were varied to reflect the time spent in pre-sentence custody, while the rest of the sentences were confirmed as imposed.

Orders

Orders of the court

Application for leave to appeal granted. 1.

Appeal allowed. 2.

Vary the sentence on count 1 by substituting

20 January 2009 for the parole release date of

19 June 2009 fixed by the sentencing judge. 3.

Vary the sentence on count 2 by substituting the period of three months for the period of eight months ordered by the sentencing judge as the period of time after which the term of imprisonment is to be suspended. 4.

In all other respects confirm the sentences imposed by the sentencing judge.5.

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

Full text does not contain this section.

Citations

AGLC Citation

R v Fabre [2008] QCA 386

Most Recent Citation

R v Hill, Bakir, Gray and Broad; ex parte [2011] QCA 306

Cases citing this decision · 32 of 32 shown

R v Oad
[2024] QCA 189 Para 16

…was no specific case on point in Queensland, although the applicant submitted that cases such as R v Skedgwell [1999] 2 Qd R 97 and R v Fabre [2008] QCA 386 supported a flexible approach to such matters. The sentencing judge then stated: “However, having considered the arguments, I do not think the Court can enti…
Dib v Rex
[2023] NSWCCA 243 Para 82

…: see, for example, Narkle v Hamilton [2008] WASCA 31; R v Skedgwell [1999] 2 Qd R 97; [1998] QCA 93; Ainsworth v R [2000] QCA 163; and R v Fabre [2008] QCA 386. The existence of a discretion to take into account uncredited custody which was not “doubly warranted” was expressly denied in R v Sprecher (2015) 123 S…
R v Atasoy
[2023] QCA 121 Para 18

…l had signalled his intention to plead not guilty, was inconsistent with the presumption of innocence to which the applicant was entitled.” [18][2008] QCA 386, [14]. [19][2016] QCA 249, [28].…
Scott v NPQ
[2022] QCA 98 Para 11

…idering what is a just sentence and that such time should be taken into account on sentence at the earliest opportunity. [22][1998] 1 Qd R 672. [23][2008] QCA 386. [24][1999] 2 Qd R 97.…
GHN v Commissioner of Police
[2022] QDC 86 Para 5

…ns that the other sentences should be adjusted to take into account the non-declarable period of 15 days in respect of those offences. [30] R v Fabre [2008] QCA 386 at [14]; R v George [2013] QCA 302 at [22]; R v Maksoud [2016] QCA 115 at [34].…
R v Winkelmann
[2022] QDC 49 Para 15

…ion is that this time is necessarily counted in respect of the service of that period of imprisonment. [21] Ibid at [29]. [22] Eg: see; R v Fabre [2008] QCA 386 at [14], R v NT [2018] QCA 106 at [26]-[28] and R v Vidler [2018] QCA 232 at pp3-4.…
Scott v NPQ
[2021] QSC 321 Para 35

…In the current case, Counsel on behalf of the respondent referred to the Court of Appeal decision in R v Fabre [2008] QCA 386.…
R v Cook
[2021] QCA 209 Para 16

…inevitable that Ms Cook would have been required to serve a period of actual custody. The prosecutor relied on one comparable authority of R v Fabre [2008] QCA 386 to submit that, if the sentencing judge were dealing with offences on the indictment without taking into account the sentence that was imposed on 13…
R v TAQ
[2020] QCA 200 Para 19

…hould be taken into account on the first occasion that the prisoner is before the sentencing court. That is usually the appropriate course: R v Fabre [2008] QCA 386 at [14]-[16].…
R v Rohlf
[2020] QCA 105

…The sentencing judge referred to R v Fabre [2008] QCA 386 and concluded that the period of about 10 months the applicant had served in pre-sentence custody that was unable to be declared should be taken into account in reduction both of the head sentence and the custodial period. The sentencing judge distinguishe…
Hunt v Queensland Police Service
[2019] QDC 204 Para 14

…[31] R v Fabre [2008] QCA 386 at [14].…
R v Fabre
[2019] QCA 78

…e sentencing, Mr Fabre was successful on appeal in having the parole date and suspension take effect after serving three months in custody: R v Fabre [2008] QCA 386.…
R v Brunning
[2018] QCA 263

…tly, the applicant submits that the sentence is manifestly excessive. She makes this submission in reliance upon decisions of this Court in R v Fabre [2008] QCA 386, R v Duggan [2004] QCA 442 and R v Watkins [2016] QCA 60.…
R v Vidler
[2018] QCA 232 Para 14

…[1][2008] QCA 386 at [14].…
R v NT
[2018] QCA 106 Para 28

…6] but the usual practice is to perform both reductions.[7] [5] R v Carlisle [2017] QCA 258 [46] citing R v Skedgwell [1999] 2 Qd R 97; R v Fabre [2008] QCA 386. [6] R v Skedgwell [1999] 2 Qd R 97 at 100. [7] R v Carlisle [2017] QCA 258 [50].…
R v Roberts
[2017] QCA 256 Para 1

…njust to make such an order.[11] [8]See R v Skedgwell [1999] 2 Qd R 97 at 99 – 100. [9] R v Stokes [2016] QCA 157 at [16]. [10] R v Fabre [2008] QCA 386 at [14] – [15]. [11]See R v Stevens [2006] QCA 361 at [22].…
R v Carlisle
[2017] QCA 258 Para 3

…fendant was required to serve in custody before being eligible for parole by a period close to the 344 days then spent on remand. [4] R v Fabre [2008] QCA 386 at [14]. [5][1999] 2 Qd R 97. [6][2008] QCA 386.…
R v Hill
[2017] QCA 177 Para 1

…oximately 16 months spent in pre-sentence custody could not be declared as time served, so it was appropriate to take it into account. [10] R v Fabre [2008] QCA 386 at [14].…
R v Kalaja
[2017] QCA 123 Para 16

…in cannabis the custody that was served between 27 April and 30 June 2016. See also R v Cannon [2005] QCA 41 at [7], [14] and [20]-[21] and R v Fabre [2008] QCA 386 at [14]-[15], and the rationale for taking such a period into account that was canvassed, but not determined, in Karpinski v R (2011) 32 VR 85 at [48…
R v Saggers
[2016] QCA 344

…l [2016] QCA 114 , distinguished R v Barton [2006] QCA 367 , distinguished R v Cannon [2005] QCA 41 , cited R v Fabre [2008] QCA 386 , cited R v McAway [2008] QCA 401 , distinguished R v Mullins [2007] QCA 418 , distinguished R v Reid [2013] QCA 190 , distinguished R v Skedgwell [1999] 2 Qd R 97; [1998] QCA 93, c…
R v Gray
[2016] QCA 322 Para 28

…he pre-sentence custody into account. However the learned sentencing judge could, as a matter of discretion, take it into account.[18] [18] R v Fabre [2008] QCA 386, at [11] per Fraser JA, Keane and Muir JJA concurring. See also R v Lappan [2015] QCA 180, at [19]; R v Maksoud [2016] QCA 115, at [40]-[42]; Geale v…
R v MKL
[2016] QCA 249 Para 24

…able a sentencing court retains a discretion to take the period of pre-sentence custody into account in arriving at the appropriate sentence.[12] [11][2008] QCA 386. [12] Fabre at [11] per Fraser JA, Keane and Muir JJA concurring.…
R v Maksoud
[2016] QCA 115 Para 2

…ame general approach: see R v Wade [2005] VSCA 276, R v Black [2007] VSCA 82, and R v Rosenow [2007] VSCA 265.” [37]AB17 Tr1-3 ll35-36. [38][2008] QCA 386.…
R v Nguyen
[2015] QCA 205 Para 14

…after nine months is one month short of one-third of the sentence. [2]Written submissions paragraph 18, citing R v Beasley [2013] QCA 322; R v Fabre [2008] QCA 386; R v Duggan [2004] QCA 442; R v Gillbanks [2015] QCA 148; R v Tabe [2004] QCA 17; R v Griffiths [2009] QCA 13 and R v Hesketh [2004] QCA 116.…
R v Lappan
[2015] QCA 180 Para 19

…nly made that course appropriate in the present case. [13] R v Ainsworth [2000] QCA 163; R v Voss [2000] QCA 176; R v Cannon [2005] QCA 41; R v Fabre [2008] QCA 386 (especially at [14]-[15]). [14]See R 28; R 8-9.…
R v Gillbanks
[2015] QCA 148

…he appropriate sentence as one of between two and a half and three years. He was referred to some decisions in comparable matters including R v Fabre [2008] QCA 386 and R v Beasley [2013] QCA 322, both of which supported that view, and the applicant does not take any issue with it. Taking into account the signifi…
The Queen v Cherry
[2014] QSC 58 Para 1

…e brought into account. The extent to which this is done is a matter of discretion for the sentencing judge. [4][1999] 2 Qd R 97 [5][2000] QCA 163 [6][2008] QCA 386…
R v Beasley
[2013] QCA 322 Para 1

…The sentencing judge referred to the submission for the prosecution that R v Fabre [2008] QCA 386 indicated that if count 1 stood alone, a sentence for that offence after trial might be in the order of three years imprisonment. The sentence in that case of two and a half years imprisonment, with parole release fi…
R v Hill, Bakir, Gray and Broad; ex parte
[2011] QCA 306 Para 1

…elow displays error and was manifestly inadequate, it would be appropriate to follow the general approach set out by the Court of Appeal in R v Fabre [2008] QCA 386, that while it is not mandatory, it is generally desirable to take into account periods of presentence custody which are not declarable under s 159A…
Adams v Commissioner of Police
[2011] QDC 40 Para 1

…Ms Geary relies on the decisions in R v Woods [2004] QCA 204; R v Kitson [2008] QCA 86, and R v Fabre [2008] QCA 386. With respect, each of those matters involved (in part at least) the possession of substantial quantities of drugs (primarily methyl-amphetamine and/or amphetamine, and the sentences imposed are of…
Geale v Tasmania
[2009] TASSC 28 Para 1

…torian approach to the import of s18 (Vic), was followed in Queensland in R v Skedgwell [1992] 2 Qd R 97; R v Ainsworth [2000] QCA 163; and R v Fabre [2008] QCA 386. In the last named case, Fraser JA, with whom Keane and Muir JA concurred, stated at 14 – 16:…
R v Al-Zuain
[2009] SASC 123 Para 27

…] 2 Qd R 97; Narkle v Hamilton [2008] WASCA 31. The decision of the Queensland Court of Appeal in Skedgwell has been cited with approval in R v Fabre [2008] QCA 386. It is worth noting that, like the Victorian Section as it originally stood, the relevant legislation in both Queensland and Western Australia includ…

View all 32 citing cases →

Cases cited in this decision · 8 of 8 shown

Thurlow v The Queen
[2021] VSCA 71 Para 1

…e decisions the Court referred with approval to the approach taken in Victoria under analogous legislation in decisions including R v Renzella [1997] 2 VR 88 and R v Arts & Griggs (1997) 93 A Crim R 56. This Court has recently endorsed that general approach: see R v Cannon [2005] QCA 41. I note that the Vi…
R v Rosenow
[2007] VSCA 265 Para 1

…rian Court of Appeal has also continued to endorse the same general approach: see R v Wade [2005] VSCA 276, R v Black [2007] VSCA 82, and R v Rosenow [2007] VSCA 265.…
R v Black
[2007] VSCA 82 Para 1

…5] QCA 41. I note that the Victorian Court of Appeal has also continued to endorse the same general approach: see R v Wade [2005] VSCA 276, R v Black [2007] VSCA 82, and R v Rosenow [2007] VSCA 265.…
R v Wade
[2005] VSCA 276 Para 1

…proach: see R v Cannon [2005] QCA 41. I note that the Victorian Court of Appeal has also continued to endorse the same general approach: see R v Wade [2005] VSCA 276, R v Black [2007] VSCA 82, and R v Rosenow [2007] VSCA 265.…
R v Cannon
[2005] QCA 41 Para 1

…uding R v Renzella [1997] 2 VR 88 and R v Arts & Griggs (1997) 93 A Crim R 56. This Court has recently endorsed that general approach: see R v Cannon [2005] QCA 41. I note that the Victorian Court of Appeal has also continued to endorse the same general approach: see R v Wade [2005] VSCA 276, R v Black [2007] VS…
R v Ainsworth
[2000] QCA 163 Para 1

…sirable to take into account periods of pre-sentence custody which are not declarable under s 159A of the Act at the first opportunity: R v Ainsworth [2000] QCA 163 and R v Voss [2000] QCA 176. In those decisions the Court referred with approval to the approach taken in Victoria under analogous legislation in dec…
R v Skedgwell
[1998] QCA 93 Para 1

…nce custody into account in arriving at the appropriate sentence. So much was confirmed by this Court’s decision in R v Skedgwell [1999] 2 Qd R 97; [1998] QCA 93.…
QCA 163 and R v Voss
[2000] QCA 176 Para 1

…periods of pre-sentence custody which are not declarable under s 159A of the Act at the first opportunity: R v Ainsworth [2000] QCA 163 and R v Voss [2000] QCA 176. In those decisions the Court referred with approval to the approach taken in Victoria under analogous legislation in decisions including R v Renzell…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 1)

CITATION:	R v Fabre [2008] QCA 386
PARTIES:	R v FABRE, Hugo Charles (applicant/appellant)
FILE NO/S:	CA No 270 of 2008 SC No 162 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	4 December 2008
DELIVERED AT:	Brisbane
HEARING DATE:	1 December 2008
JUDGES:	Keane, Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application for leave to appeal granted. 1. Appeal allowed. 2. Vary the sentence on count 1 by substituting 20 January 2009 for the parole release date of 19 June 2009 fixed by the sentencing judge. 3. Vary the sentence on count 2 by substituting the period of three months for the period of eight months ordered by the sentencing judge as the period of time after which the term of imprisonment is to be suspended. 4. In all other respects confirm the sentences imposed by the sentencing judge.5.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – TIME SPENT IN CUSTODY – where applicant sentenced for two offences – where applicant had been held in pre-sentence custody prior to sentencing in relation to the relevant two offences and for a number of other offences – where the pre-sentence custody could not be declared pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) – where the sentencing judge did not exercise his discretion to take the pre-sentence custody into account in arriving at the appropriate sentences to impose – where the sentencing judge observed that it was likely that there would be a future situation where the applicant would be given credit for the time he had served – whether the sentencing judge ought to have taken the pre-sentence custody into account in arriving at the appropriate sentences to impose Penalties and Sentences Act 1992 (Qld), 159A R v Ainsworth[2000] QCA 163, applied R v Cannon [2005] QCA 41, applied R v Renzella [1997] 2 VR 88, referred to R v Skedgwell [1999] 2 Qd R 97; [1998] QCA 93, cited R v Wade [2005] VSCA 276, cited
COUNSEL:	D J Walsh for the applicant/appellant M J Copley for the respondent
SOLICITORS:	A W Bale & Son for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent