R v Hawks

The applicant sought an extension of time to appeal against his sentence of seven years, imposed on 22 August 2018, on the basis that the imposition of a cumulative sentence rendered it manifestly excessive. The applicant argued that the trial judge did not consider that he had already been sentenced for related offences on 4 October 2017. The court was required to decide whether it was in the interests of justice to grant the extension and whether the sentence should be set aside.

The court found that it was in the interests of justice to grant the extension of time. The applicant had provided a reasonable explanation for the delay in seeking the extension, as he only became aware of the applicability of the principle of totality after his imprisonment and required time to research and consider his position. The court also found that the sentencing judge had erroneously calculated the commencement date of the index sentence to be the date after the 4 October 2017 sentence expired. The sentence should have been served cumulative on the sentence imposed on 8 April 2016, which expires on 29 August 2018.

The court allowed the appeal and set aside the sentence imposed on 22 August 2018. A term of seven years imprisonment was imposed cumulative on the sentence imposed on 8 April 2016. The court also imposed a parole eligibility date of 22 May 2021. The respondent accepted that leave should be granted but that the appeal should be dismissed because the sentencing judge also had a discretion, pursuant to section 156 of the Penalties and Sentences Act 1992 (Qld) to order that the sentence be imposed cumulatively on the expiration of the “period of imprisonment”, being 3 October 2020. The court found that the sentencing judge had failed to exercise the discretion properly and that it was appropriate to re-exercise the discretion to correct the error of the sentencing judge.