R v. Farrenkothen

[2009] QCA 117

SUPREME COURT OF QUEENSLAND

CITATION:	R v Farrenkothen [2009] QCA 117
PARTIES:	R v FARRENKOTHEN, Jurgen (applicant)
FILE NO/S:	CA No 157 of 2003 DC No 14A of 2003 DC No 14B of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Criminal
ORIGINATING COURT:	District Court at Gladstone
DELIVERED EX TEMPORE ON:	7 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	7 May 2009
JUDGES:	Holmes and Muir JJA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Declare that the prisoner has served in respect of all sentences imposed by the Court of Appeal a period of presentence custody of 340 days between 19 August 2002 and 24 July 2003.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT ON APPEAL – POWER TO MAKE ORDERS AS TO TIME COUNTED AS PART OF SENTENCE – where declaration of presentence custody made at first instance incorrect – where Court of Appeal set aside sentence imposed at first instance, but did not make any declaration of presentence custody – where sentenced reopened to make declaration
COUNSEL:	K M Hillard for the applicant P F Rutledge for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Qld) for the respondent

HOLMES JA:  On 6 May 2003, Mr Farrenkothen was sentenced in the District Court.  A declaration was made of 269 days presentence custody, between 19 August 2002 and 6 May 2003.  The declaration of 269 days was, in fact, an error.  It is accepted that the correct period was 261 days.

In any event the sentence was set aside by a judgment of this Court on 24 July 2003.  At that time there seems not to have been any declaration of presentence custody made.  It is appropriate for this Court to re-open the sentence to the extent of making that declaration now.

Allowing for the fact that the Court of Appeal was, in fact, imposing a new sentence, it seems appropriate to make the declaration in respect of the entire period from which Mr Farrenkothen was taken into custody to the date on which he was re-sentenced by the Court of Appeal.  I would declare, therefore, that he has served in respect of the sentences imposed by the Court of Appeal a period in presentence custody of 340 days, between the 19 August 2002 and 24 July 2003.

MUIR JA:  I agree.

DUTNEY J:  I agree.

MS HILLARD:  Your Honour, I am just wondering if you should perhaps make the further order that that is in respect of all of the sentences that he was serving to avoid any further problems with the correctional centre.

HOLMES JA:  I think I have said sentences in the plural but to put the matter beyond any doubt I make it clear that that presentence custody applies to all the sentences imposed by the Court of Appeal.