R v HBZ (No 2)

SUPREME COURT OF QUEENSLAND

CITATION:

R v HBZ (No 2) [2020] QCA 80

PARTIES:

R
v
HBZ
(appellant)

FILE NO/S:

CA No 176 of 2019
DC No 21 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 6 June 2019; Date of Sentence: 10 June 2019 (Lynham DCJ)

DELIVERED ON:

22 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

McMurdo and Mullins JJA and Boddice J

ORDERS:

1.   Vary order 4 made on 17 April 2020 to substitute 19 January 2021 as the fixed parole release date.

2.   Set aside the pre-sentence custody declaration made for count 1 at first instance and, in lieu, the following declaration is made:

“Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) it is declared that 92 days spent in pre-sentence custody between 6 June 2019 and 5 September 2019 is time that is taken to be imprisonment already served under the sentences.”

3.   Vary order 5 made on 17 April 2020 to delete the reference to “declaration as to pre-sentence custody and”.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – JUDGMENTS AND ORDERS – CORRECTION UNDER SLIP RULE – OTHER PARTICULAR CASES – where the appellant had been granted appeal bail – where the appellant succeeded on his appeal against sentence – where the parties had not advised the court before the orders were made on the appeal against sentence that the appellant had been granted appeal bail – where variation required to the orders as a result

R v HBZ[2020] QCA 73, related

COUNSEL:

A W Collins for the appellant
D Balic for the respondent

SOLICITORS:

Resolute Legal for the appellant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: When the court heard the appeal, the members of the court were not advised by either the appellant or the respondent that the appellant had, in fact, on 5 September 2019 been granted bail pending the hearing of the appeal. When the court’s decision in R v HBZ [2020] QCA 73 was published on 17 April 2020, the orders were made on the basis that the appellant had remained in custody after being sentenced.
Further orders were therefore made on 17 April 2020 with the concurrence of the appellant and the respondent that the appellant surrender himself to the Townsville Police Station at 10 am on 22 April 2020 and that a warrant issue for his arrest to lie in the Registry for a period of seven days.
It is now necessary to vary the orders made on 17 April 2020 to reflect the revised parole release date for count 1, after allowing for the appellant to serve one year of the sentence in custody and to substitute a fresh declaration as to pre-sentence custody.
The further orders are:
1.   Vary order 4 made on 17 April 2020 to substitute 19 January 2021 as the fixed parole release date.
2.   Set aside the pre-sentence custody declaration made for count 1 at first instance and, in lieu, the following declaration is made:
“Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) it is declared that 92 days spent in pre-sentence custody between 6 June 2019 and 5 September 2019 is time that is taken to be imprisonment already served under the sentences.”
3.   Vary order 5 made on 17 April 2020 to delete the reference to “declaration as to pre-sentence custody and”.

CaseChat Overview and Summary

The appellant in this case, HBZ, appealed against his sentence in the Supreme Court of Queensland. The dispute centred on the need for corrections to the orders made during the appeal process. The appeal was successful, but the court identified errors in the orders that required amendment. The court had to determine whether and how to correct these errors under the slip rule, considering the appellant had been granted appeal bail and this fact had not been communicated to the court before the orders were made.

The primary legal issue was whether the court could vary the orders made on appeal, despite the appellant's successful appeal against sentence. The appellant argued that the court should not make variations to the orders due to the successful appeal, while the respondent contended that the court retained the discretion to correct errors under the slip rule. The court needed to balance the appellant's rights with the need to ensure the orders were accurate and legally sound.

The court held that it had the authority to correct the orders under the slip rule, even though the appellant had succeeded on his appeal. The court reasoned that the errors in the orders were significant and needed rectification to ensure the final orders were correct and legally valid. The court varied the orders to correct the fixed parole release date, amended the pre-sentence custody declaration, and deleted an unnecessary reference from one of the orders. The court emphasised its discretion to correct errors and ensure the final orders were accurate, regardless of the outcome of the appeal.

The final orders included substituting the fixed parole release date, amending the pre-sentence custody declaration, and deleting a reference from one of the orders. These changes ensured that the final orders were legally correct and reflected the court's findings.

Orders of the court

1. Vary order 4 made on 17 April 2020 to substitute 19 January 2021 as the fixed parole release date.

2. Set aside the pre-sentence custody declaration made for count 1 at first instance and, in lieu, the following declaration is made:

“Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) it is declared that 92 days spent in pre-sentence custody between 6 June 2019 and 5 September 2019 is time that is taken to be imprisonment already served under the sentences.”

3. Vary order 5 made on 17 April 2020 to delete the reference to “declaration as to pre-sentence custody and”.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	R v HBZ (No 2) [2020] QCA 80
PARTIES:	R v HBZ (appellant)
FILE NO/S:	CA No 176 of 2019 DC No 21 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Townsville – Date of Conviction: 6 June 2019; Date of Sentence: 10 June 2019 (Lynham DCJ)
DELIVERED ON:	22 April 2020
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	McMurdo and Mullins JJA and Boddice J
ORDERS:	1. Vary order 4 made on 17 April 2020 to substitute 19 January 2021 as the fixed parole release date. 2. Set aside the pre-sentence custody declaration made for count 1 at first instance and, in lieu, the following declaration is made: “Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) it is declared that 92 days spent in pre-sentence custody between 6 June 2019 and 5 September 2019 is time that is taken to be imprisonment already served under the sentences.” 3. Vary order 5 made on 17 April 2020 to delete the reference to “declaration as to pre-sentence custody and”.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – JUDGMENTS AND ORDERS – CORRECTION UNDER SLIP RULE – OTHER PARTICULAR CASES – where the appellant had been granted appeal bail – where the appellant succeeded on his appeal against sentence – where the parties had not advised the court before the orders were made on the appeal against sentence that the appellant had been granted appeal bail – where variation required to the orders as a result R v HBZ[2020] QCA 73, related
COUNSEL:	A W Collins for the appellant D Balic for the respondent
SOLICITORS:	Resolute Legal for the appellant Director of Public Prosecutions (Queensland) for the respondent