R v Glebow - [2007] QCA 230

SUPREME COURT OF QUEENSLAND

CITATION:

R v Glebow [2007] QCA 230

PARTIES:

R
v
GLEBOW, Gregory George
(applicant/appellant)

FILE NO/S:

CA No 104 of 2007
DC No 127 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

20 July 2007

DELIVERED AT:

Brisbane

HEARING DATE:

12 July 2007

JUDGES:

de Jersey CJ, Jerrard JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Grant leave to appeal
2. Allow the appeal
3. Order that the applicant be imprisoned for nine months, to be served concurrently with the term of life imprisonment imposed on 5 March 2002, and that under s 160C(5) of the Penalties and Sentences Act 1992 (Qld), the applicant’s parole eligibility date be fixed as 4 October 2015.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE – POWER TO IMPOSE – WHERE PRISONER SERVING LIFE SENTENCE – where applicant sentenced to life imprisonment for murder – where applicant later pleaded guilty to assaulting another inmate in correctional centre – where primary Judge sentenced applicant to nine months imprisonment for assault to be served concurrently with life sentence, and fixed new parole eligibility date six months later – whether Judge had an obligation or a discretion to fix new parole eligibility date – whether courts can penalize life prisoners who re-offend while in custody

CRIMINAL LAW – PROBATION, PAROLE, RELEASE ON LICENCE AND REMISSIONS – QUEENSLAND – where applicant sentenced to life imprisonment for murder – where primary Judge sentenced applicant to nine months imprisonment for a subsequent assault to be served concurrently with life sentence, and fixed new parole eligibility date – whether fixing a later parole eligibility date is an impermissible variation of the life sentence

Corrective Services Act 2006 (Qld), s 181, s 214
Criminal Code Act 1899 (Qld), s 305(1), s 305(2)
Penalties and Sentences Act 1992 (Qld), s 153(1), s 160, s 160A, s 160B, s 160C, s 160D, s 161A

R v Bafico [1995] QCA 485, [1996] 2 Qd R 274, considered
R v Corrigan[1993] QCA 417, [1994] 2 Qd R 415, considered
R v Griffiths[1999] QCA 5; CA 339 of 1998, 3 February 1999, discussed

COUNSEL:

A W Moynihan SC, with K Prskalo, 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

de JERSEY CJ: This judgment addresses an important public issue: whether the legislature has effectively ensured that courts can penalize life prisoners who re-offend while in custody. It is abhorrent to think a murderer should not, by the sentences of the court, be deterred from committing further violent crimes while in custody.

The present issue is whether the legislature has effectively armed the courts with any capacity to secure…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Glebow

Details

AGLC: R v Glebow [2007] QCA 230
Case: [2007] QCA 230
Decision Date: 20 July 2007

CaseChat Overview and Summary

The appellant in this case was serving a life sentence for murder when he pleaded guilty to assaulting another inmate in a correctional centre. The primary judge sentenced the appellant to nine months imprisonment for the assault, to be served concurrently with the life sentence, and set a new parole eligibility date six months later. The appellant challenged the decision, arguing that the primary judge had no obligation or discretion to set a new parole eligibility date, and that courts cannot penalise life prisoners who re-offend while in custody. The appeal was heard in the Court of Appeal, which had to determine the legal issues surrounding the setting of a new parole eligibility date and the ability of the courts to penalise life prisoners who re-offend while in custody. The Court of Appeal held that the primary judge had an obligation to set a new parole eligibility date under section 160C(5) of the Penalties and Sentences Act 1992 (Qld). The court also held that the primary judge did not have the power to penalise the appellant for re-offending while in custody, but that the setting of a new parole eligibility date was not an impermissible variation of the life sentence. The appeal was allowed, and the appellant was ordered to be imprisoned for nine months, to be served concurrently with the term of life imprisonment imposed on 5 March 2002, and his parole eligibility date was fixed as 4 October 2015.

Orders

Orders of the court

1. Grant leave to appeal

2. Allow the appeal

3. Order that the applicant be imprisoned for nine months, to be served concurrently with the term of life imprisonment imposed on 5 March 2002, and that under s 160C(5) of the Penalties and Sentences Act 1992 (Qld), the applicant’s parole eligibility date be fixed as 4 October 2015.

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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CITATION:	R v Glebow [2007] QCA 230
PARTIES:	R v GLEBOW, Gregory George (applicant/appellant)
FILE NO/S:	CA No 104 of 2007 DC No 127 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	20 July 2007
DELIVERED AT:	Brisbane
HEARING DATE:	12 July 2007
JUDGES:	de Jersey CJ, Jerrard JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Grant leave to appeal 2. Allow the appeal 3. Order that the applicant be imprisoned for nine months, to be served concurrently with the term of life imprisonment imposed on 5 March 2002, and that under s 160C(5) of the Penalties and Sentences Act 1992 (Qld), the applicant’s parole eligibility date be fixed as 4 October 2015.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE – POWER TO IMPOSE – WHERE PRISONER SERVING LIFE SENTENCE – where applicant sentenced to life imprisonment for murder – where applicant later pleaded guilty to assaulting another inmate in correctional centre – where primary Judge sentenced applicant to nine months imprisonment for assault to be served concurrently with life sentence, and fixed new parole eligibility date six months later – whether Judge had an obligation or a discretion to fix new parole eligibility date – whether courts can penalize life prisoners who re-offend while in custody CRIMINAL LAW – PROBATION, PAROLE, RELEASE ON LICENCE AND REMISSIONS – QUEENSLAND – where applicant sentenced to life imprisonment for murder – where primary Judge sentenced applicant to nine months imprisonment for a subsequent assault to be served concurrently with life sentence, and fixed new parole eligibility date – whether fixing a later parole eligibility date is an impermissible variation of the life sentence Corrective Services Act 2006 (Qld), s 181, s 214 Criminal Code Act 1899 (Qld), s 305(1), s 305(2) Penalties and Sentences Act 1992 (Qld), s 153(1), s 160, s 160A, s 160B, s 160C, s 160D, s 161A R v Bafico [1995] QCA 485, [1996] 2 Qd R 274, considered R v Corrigan[1993] QCA 417, [1994] 2 Qd R 415, considered R v Griffiths[1999] QCA 5; CA 339 of 1998, 3 February 1999, discussed
COUNSEL:	A W Moynihan SC, with K Prskalo, 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