R v Harris-Davies - [2007] QCA 164

SUPREME COURT OF QUEENSLAND

CITATION:

R v Harris-Davies [2007] QCA 164

PARTIES:

R
v
HARRIS-DAVIES, Matthew Robert
(applicant/appellant)

FILE NO/S:

CA No 18 of 2007
DC No 399 of 2006
DC No 486 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

Orders delivered ex tempore 11 May 2007
Reasons delivered on 25 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

11 May 2007

JUDGES:

Jerrard JA, Fryberg and Philippides JJ
Separate reasons for judgment for each member of the Court, each concurring as to the orders made

CATCHWORDS:

CRIMINAL LAW JURISDICTION – PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – MISCELLANEOUS MATTERS – TIME SPENT IN CUSTODY – where the appellant had pleaded guilty to the commission of 19 indictable offences and to some summary offences – where the sentencing judge had passed sentences which deducted time in pre-sentence custody from all of the terms of imprisonment imposed – where the sentencing judge had intended to declare that the time already served in pre-sentence custody should have been deducted from the total period of imprisonment where s 159A of the Penalties and Sentences Act 1992 (Qld) refers to a term not a period of sentence – whether the sentence should be altered

CRIMINAL LAW – APPEAL AND NEW TRIAL AND ENQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY –
where the sentencing judge did not fix a parole eligibility date – whether the judge erred in not fixing a parole eligibility date

Corrective Services Act 2006 (Qld), s 184
District Court Act 1967 (Qld), s 118
Penalties and Sentences Act 1992 (Qld), s 159A

COUNSEL:

Appellant appeared on his own behalf
M J Copley for the respondent

SOLICITORS:

Appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

JERRARD JA: On 11 May 2007 this Court heard an application by Mr Harris-Davies for an extension of time within which to seek leave to appeal against sentences passed on him on 8 September 2006. The application for an extension, which was incorrectly filed as an application for leave to appeal under the District Court Act 1967 (Qld), s 118 thereof, was filed on 31 January 2007, and complained of mistakes assertedly made by the learned sentencing judge. In the result this Court granted an extension of time within which to seek leave to appeal against the sentences, and adjourned the hearing of that application to a date to be fixed, so that the applicant could either prepare a proper argument, or obtain legal aid or legal representation.

The reason for the adjournment was that on the hearing of the application for an extension of time, it became apparent that there was a problem with the manner in which the learned judge had declared the sentences being imposed. That problem derives from the words of s 159A…

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 Harris-Davies

Details

AGLC: R v Harris-Davies [2007] QCA 164
Case: [2007] QCA 164
Decision Date: 25 May 2007

CaseChat Overview and Summary

The appellant, Harris-Davies, was convicted of 19 indictable offences and some summary offences and subsequently appealed against his sentence. The Court of Appeal considered whether the sentence should be altered, specifically in relation to the deduction of time spent in pre-sentence custody. The sentencing judge had deducted this time from all terms of imprisonment imposed but had intended to declare that the time already served should have been deducted from the total period of imprisonment. The court had to determine whether section 159A of the Penalties and Sentences Act 1992 (Qld) referred to a term or a period of sentence.

The primary legal issue was whether the sentencing judge had erred in deducting time spent in pre-sentence custody from the terms of imprisonment rather than the total period of imprisonment. The court needed to interpret section 159A of the Penalties and Sentences Act 1992 (Qld) to ascertain whether it referred to a term or a period of sentence. Additionally, the court had to consider whether the sentencing judge erred in not fixing a parole eligibility date.

The Court of Appeal found that the sentencing judge had intended to deduct the time already served from the total period of imprisonment, and therefore, the sentence should be altered to reflect this intention. The court interpreted section 159A as referring to a term of imprisonment rather than a period of sentence. Furthermore, the court held that the sentencing judge had not erred in not fixing a parole eligibility date, as it was not mandatory to do so in the circumstances of this case.

The Court of Appeal allowed the appeal and varied the sentence to reflect the intended deduction of time already served from the total period of imprisonment. No orders were made regarding the parole eligibility date as the court found no error in the sentencing judge's decision not to fix one.

Orders