R v Garland

Case [2014] QCA 3

SUPREME COURT OF QUEENSLAND

CITATION:

R v Garland [2014] QCA 3

PARTIES:

R
v
GARLAND, Raymond Henry
(applicant)

FILE NO/S:

CA No 270 of 2012
DC No 1976 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:


District Court at Brisbane

DELIVERED ON:

7 February 2014

DELIVERED AT:

Brisbane

HEARING DATE:

19 September 2013

JUDGES:

Fraser and Morrison JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where in October 1998 four indefinite sentences were imposed on the applicant for four charges of rape – where life imprisonment was nominated (in each case) as the term of imprisonment the court would have otherwise imposed – where the first review of these indefinite sentences, undertaken pursuant to s 163(2) of the Penalties and Sentences Act 1992, was heard and decided in August 2012 – where the primary judge decided that he would not discharge the indefinite sentences – where the applicant is seeking leave to appeal from the first review – whether the primary judge erred in assessing the danger to the community by reference to an immediate notional release into the community and by projecting that assessment into the future for at least two years – whether the primary judge erred by misapplying or not applying the dicta of the High Court in Buckley v The Queen (2006) 80 ALJR 605 – whether the primary judge erred by not properly accounting for the protection given to the community by the parole board, given that the applicant’s nominal sentence was life imprisonment

Mental Health Act 1974 (Qld), pt 4
Penalties and Sentences Act 1992 (Qld), s 3, s 9, s 9(1), s 9(2), s 9(4), s 11, s 12, s 13, s 13A, s 163
Penalties and Sentences Act 1992 (Qld) (Reprint No. 5B), s 163, s 163(2), s 171(1)(a)(ii)
Penalties and Sentences Act 1992 (Qld) (Reprint No. 11C), s 162, s 163, s 163(1), s 163(3), s 163(3)(b), s 163(4), s 163(4)(a), s 163(4)(d), s 163(4)(e), s 171, s 172, s 173, s 173(1), s 176(3)

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27;[2009] HCA 41, considered
Buckley v The Queen (2006) 80 ALJR 605; [2006] HCA 7, considered
Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 87 ALJR 131; [2012] HCA 56, cited
Gunn v Queensland Corrective Services Commission & Queensland Community Corrections Board, unreported, Supreme Court of Queensland, Application No 28 of 1995, 2 August 1995, cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, considered
R v Buckley[2008] QCA 45, considered
R v Fletcher [2011] QSC 235, considered
R v…

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Details
AGLC
R v Garland [2014] QCA 3
Case
[2014] QCA 3
Decision Date

CaseChat Overview and Summary

In 1998, the applicant was convicted of four charges of rape and received indefinite sentences for each offence, with life imprisonment designated as the term of imprisonment the court would have otherwise imposed. In August 2012, the first review of these sentences was conducted under section 163(2) of the Penalties and Sentences Act 1992. The primary judge concluded that the indefinite sentences should not be discharged. The applicant now seeks leave to appeal from this review decision, arguing that the primary judge erred in assessing the danger to the community based on an immediate notional release and by projecting this assessment into the future for at least two years. The applicant also contends that the primary judge misapplied or failed to apply the High Court's dicta in Buckley v The Queen and did not adequately consider the protection provided by the parole board, given that the applicant's nominal sentence was life imprisonment.

The court needed to determine whether the primary judge erred in his assessment of the danger to the community by focusing on an immediate notional release and projecting this assessment into the future for at least two years. Additionally, the court had to examine whether the primary judge misapplied or failed to apply the High Court's dicta in Buckley v The Queen and whether he properly considered the protection provided by the parole board, given the applicant's nominal sentence of life imprisonment.

The court found that the primary judge did not err in his assessment of the danger to the community. The court considered that the primary judge was correct in assessing the danger to the community by reference to an immediate notional release and projecting that assessment into the future for at least two years. The court also found that the primary judge did not misapply or fail to apply the High Court's dicta in Buckley v The Queen. Furthermore, the court held that the primary judge properly accounted for the protection given to the community by the parole board, as the applicant's nominal sentence was life imprisonment. Consequently, the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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