R v Grogin - [1998] QCA 361

[1998] QCA 361

COURT OF APPEAL
McPHERSON JA
AMBROSE J
BYRNE J

CA No 198 of 1998 CA No 233 of 1998

THE QUEEN
v.

RUSSELL JAMES GROGIN

Applicant/Appellant

BRISBANE
..DATE 27/08/98
270898 T16/JB M/T COA212/98
BYRNE J: In June 1997 the applicant and others invaded the
home of Mark Bennett. Mr Bennett was severely assaulted, he
was robbed, and his home was damaged. Two other men were
assaulted when they arrived at the house during the incident.

As a result of his participation in these offences, the applicant was convicted on his own pleas of guilty of one charge of housebreaking, two of armed robbery in company with wounding, three of deprivation of liberty, one of armed robbery in company and another of attempted armed robbery in company.

In respect of the more serious offences, he was sentenced to six years' imprisonment with a recommendation for eligibility for parole after two years of the sentences had been served.

In respect of the balance, the sentence was three years' imprisonment with a recommendation for parole after two years.

The applicant had been in custody since shortly after the offences were committed. From 6 June 1997 until 29 August that year, a period of 84 days, he was in custody in relation to the offences which I have mentioned. After that date he was held in respect of those offences and other charges.

The sentences were imposed in the District Court at Brisbane on 27 May 1998. That is to say, approximately nine months after 29 August 1997.

270898 D.1 T17/LM15 M/T COA212/98
In respect of the 84 day period to 29 August 1997, the Judge
declared that the time so spent in custody was imprisonment
already served under the sentences. The balance of the period
during which the applicant had been held in custody was also
taken into account, but complaint is made about the way in
which that was done.

The Judge indicated in the sentencing remarks that she was originally inclined to sentence the applicant to six and a half years' imprisonment, accompanying the sentence with a recommendation for parole after two and a half years. However, in making allowance for the time spent in custody, she decided to reduce the head sentence to six years' imprisonment and to make a recommendation for parole after two years. The sole point in this application is that the Judge took into account only six of the nine months actually spent in custody from 29 August 1997.

The sentencing remarks do not disclose why only two-thirds of the substantial time spent in pre-sentence custody was allowed for in the sentence, and there does not appear to be a satisfactory basis for that decision.

The sentence therefore requires correction to avoid what the applicant is otherwise entitled to regard as a justifiable grievance, for the proportion of the sentence for which no recognition was made was not a matter of days, but as I have said, quite substantial.

The sentence therefore requires…

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 Grogin

Details

AGLC: R v Grogin [1998] QCA 361
Case: [1998] QCA 361
Decision Date: 27/08/1998

CaseChat Overview and Summary

In the case of R v Grogin, the applicant appealed against the sentences imposed on him by the District Court at Brisbane and the District Court at Southport. The applicant had been convicted of multiple offences, including housebreaking, armed robbery, deprivation of liberty, and attempted armed robbery. The court was required to consider whether the applicant's pre-sentence custody time was adequately taken into account in the sentencing process. The applicant argued that the judge did not sufficiently account for the full period of his pre-sentence custody when determining his sentence. The court found that the applicant was entitled to regard as a justifiable grievance that the proportion of the sentence for which no recognition was made was not a matter of days, but quite substantial.

The Court of Appeal held that the sentence required correction to ensure that the applicant was not prejudiced. The judges found that the sentence should be adjusted to properly account for the applicant's pre-sentence custody time. The court proposed to substitute the original sentences with new sentences that included the appropriate pre-sentence custody time. Additionally, the court proposed to adjust the parole eligibility dates to reflect the corrected sentences. The judges unanimously agreed on the proposed orders to correct the sentences and adjust the parole eligibility dates accordingly.

The final orders of the court were to set aside the sentences imposed for Counts 1, 2, 4, and 6 and substitute them with sentences of imprisonment for five years and nine months with a recommendation for parole after 21 months. The recommendation for parole made in respect of the sentences on Counts 3, 5, and 7 was to be set aside. In respect of the sentences imposed in the Southport District Court, the court proposed to substitute the recommended parole date with 4 February 2000.

Orders