R v Fursey (No 2)

[2008] QCA 329

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fursey (No 2) [2008] QCA 329

PARTIES:

R
v
FURSEY, Andrew Leonard
(applicant/appellant)

FILE NO/S:

CA No 190 of 2008
DC No 1043 of 2006
DC No 3252 of 2006
DC No 3254 of 2006
DC No 1807 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application – Delivery of Further Orders

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

13 October 2008

JUDGES:

Keane, Holmes and Fraser JJA
Judgment of the Court

ORDERS:

Set aside order number 5 made by this Court on 17 October 2008 and instead order:1.    

Further vary the sentence to the extent that it relates to the State offences in indictments 1043 of 2006 and 3254 of 2006 and vary the orders in District Court file number 1807 of 2008 by setting aside the parole release date of 21 December 2008 fixed in the District Court and instead fixing a parole release date of 23 October 2008a.    

Otherwise confirm the orders made by this Court on 17 October 20082.     

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDER – AMENDING, VARYING AND SETTING ASIDE – INHERENT POWER TO AMEND TO GIVE EFFECT TO MEANING AND INTENTION OF COURT – where Court allowed an appeal against sentence – where Court did not make an order setting aside a parole release date fixed for a breach of a suspended sentence – where the orders did not reflect the intention of the Court – whether the orders should be varied to reflect the intention of the Court

COUNSEL:

C J Cassidy for the applicant/appellant
M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

1. THE COURT:  On 13 October 2008 this Court heard an application for leave to appeal against sentence.  On 17 October 2008 the Court granted the application and allowed the appeal and made the following orders:

“1.        Application for leave to appeal against sentence granted.

2.        Appeal allowed.

3. Vary the sentence imposed in the District Court to the extent that it relates to the Commonwealth offences in indictment 3252 of 2006 by ordering that the applicant be sentenced to six months imprisonment and direct by order that the applicant be released on 23 October 2008 after having served the period of imprisonment between 4 July and 23 October 2008 upon the applicant giving security by recognizance in the sum of $200 conditioned that the applicant be of good behaviour for a period of five years.

4. Record that the Court accepts the undertaking of the applicant’s counsel that he will give to the applicant the explanation required by s 16F(2) of the Crimes Act 1914 (Cth).

5. Further vary the sentence to the extent that it relates to the State offences in indictments 1043 of 2006 and 3254 of 2006 by setting aside the parole release date of
21 December 2008 fixed in the District Court and instead fixing a parole release date of 23 October 2008.

6. Further vary the sentence by ordering that each of the federal sentences and the state sentences are to be served concurrently with each other and with the sentence imposed in the Brisbane Magistrates Court on 23 April 2008 as varied in the District Court on 29 September 2008.

7. Otherwise confirm the sentences imposed in the District Court.”

1. It appears that in addition to the sentences imposed in the District Court with respect to indictment numbers 3254 of 2006 and 1043 of 2006 the applicant was further ordered to serve the balance of a suspended sentence that he was found to have breached (District Court file number 1807 of 2008).  The applicant was ordered to serve four months and 27 days in custody with an order that he be released on parole on 21 December 2008.

1. Unfortunately the charge sheet recording the orders made by the sentencing judge with respect to file number 1807 of 2008 was not in the application book or brought to this Court’s attention during argument.  Consequently the orders made on 17 October 2008 did not fully reflect the Court’s intention that the applicant be released on parole on 23 October 2008.  In these circumstances then, it is appropriate to vary the orders made on 17 October 2008 in order to give effect to the Court’s intention.  The respondent does not oppose that course.  

1. The court therefore orders that:

1.          Order number 5 made by this Court on 17 October 2008 be set aside and instead it be ordered that:

(a)        Further vary the sentence to the extent that it relates to the State offences in indictments 1043 of 2006 and 3254 of 2006 and vary the orders in District Court file number 1807 of 2008 by setting aside the parole release date of 21 December 2008 fixed in the District Court and instead fixing a parole release date of 23 October 2008.

2.          Otherwise confirm the orders made by this Court on 17 October 2008.