R v Fabre

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.