R v Fisher

[1996] QCA 476

IN THE COURT OF APPEAL	[1996] QCA 476
SUPREME COURT OF QUEENSLAND

C.A. No. 412 of 1996

Brisbane

[R. v. Fisher]

THE QUEEN

v.

ALAN MARK FISHER

(Applicant)

Fitzgerald P.
Davies J.A.

Dowsett J.

Judgment delivered 29 November 1996

Judgment of the Court.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	CRIMINAL - Sentence - calculation of days spent in pre-sentence custody - s.161 Penalties and Sentences Act 1992.
Counsel:	Mrs. K. McGinness for the applicant Mrs. L. Clare for the respondent
Solicitors:	Legal Aid Office (Qld) for the applicant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	19 November 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 29 November 1996

The applicant pleaded guilty in the District Court on 9 September last of three offences, common assault, wilful damage and stealing all of which occurred on 17 August 1995. He was sentenced to eight months' imprisonment, suspended after four months from the date of the sentence, in respect of the offence of common assault and one year's imprisonment, suspended after four months from the date of sentence in respect of each of the other two offences. We shall say something later about the effect on those sentences of his period of pre-sentence custody.

The applicant was born on 28 September 1970. He has a substantial criminal history, dating from 1988. On no less than 12 occasions he has been sentenced to terms of imprisonment, the longest being in March 1990 for two and a half years for a large number of offences which included several of breaking, entering and stealing. The offences of which he has been convicted over that period include numerous offences of dishonesty, two of assault occasioning bodily harm, one of serious assault on a police officer and five of assaulting police officers.

The offences the subject of the present application were committed at the Shaftson Hotel during a campaign of revenge by the applicant and four other male persons because, apparently, earlier in that evening, the applicant's cousin had been evicted from the hotel. The applicant and his companions terrorized the manager of the hotel, one of them wielding a baseball bat and two or three of the others large pieces of wood. The manager fled, pursued by the offenders. They battered a door and then set about damaging a display cabinet and bottles of alcohol. The value of the loss caused by their conduct was over $1,000. The applicant then stole some alcohol.

Apart from the applicant's plea of guilty and a difficult upbringing there was nothing to be said by way of mitigation. The nature of the offences and the applicant's previous criminal record justified the imposition of a substantial term of imprisonment as the learned sentencing Judge appears to have thought. Indeed even the applicant's own counsel, at the time of sentence, submitted for a sentence of 12 months' imprisonment with a recommendation for parole after four months.

The applicant had, prior to the time when the sentences were imposed, been held in custody in relation to proceedings for these offences and for no other reason. The learned sentencing Judge was told by the prosecution that this was for a period of 107 days from 17 August to 12 December 1995. Counsel for the applicant did not disagree with that. Before this Court it was agreed that that calculation was in error because it included part of a period of imprisonment of one month served from 24 November 1995 in respect also of another offence. In any event the period from 17 August to 12 December is 118 days and the period from 17 August to 23 November is 99 days.

Where a sentence is required to have effect from the time when it is imposed, s.161(1) of the Penalties and Sentences Act 1992 requires the sentencing Judge to take pre-sentence custody, served in relation to proceedings for the offence and for no other reason, to be imprisonment already served under the sentence unless he or she otherwise orders. The learned sentencing Judge must state the dates between which the offender was held in pre-sentence custody, calculate the time that the offender was held in pre-sentence custody and declare that time to be imprisonment served under the sentence: sub-s.(3).

In the present case the learned sentencing Judge purported to state those dates and calculate that time and he declared that pre-sentence custody of 107 days has been "taken into account". It is not entirely clear whether, in doing this, his Honour was declaring that time to be imprisonment already served under the sentence (sub-s.(3)(c)) although that seems likely because sub-s.(3)(d)(ii) provides that the sentencing Judge must cause to be noted in the records of the court "unless the court otherwise orders under sub-s.(1), the fact that the declared time was taken into account by it in imposing sentence".

On the assumption which we make, therefore, that the learned sentencing Judge intended to declare the time which he calculated to be imprisonment already served under the sentence, the effect of his Honour's order was, as counsel for the applicant submitted, to impose a term of imprisonment of one year and seven months to be suspended after seven and a half months.

If, as is now agreed, the actual period of pre-sentence custody in relation only to these offences was 99 days then the effect of the sentence imposed is little different. In either event, the sentence which the learned sentencing Judge imposed was not manifestly excessive having regard to the matters we have already mentioned. Accordingly we would refuse the application.