R v Herbert

[2013] QCA 62

SUPREME COURT OF QUEENSLAND

CITATION:

R v Herbert [2013] QCA 62

PARTIES:

R
v
HERBERT, Benjamin James
(applicant)

FILE NO/S:

CA No 182 of 2012
DC No 987 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

28 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

18 March 2013

JUDGES:

Muir and Fraser JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of a number of offences not long after he was released on parole and sentenced to three and a half years imprisonment – where the sentencing judge ordered that the sentences imposed for the offences were to be served concurrently with each other but cumulatively upon sentences which had been imposed on 25 May 2011 – where parole eligibility was fixed at 27 July 2014 – where the parole eligibility date was 10 months after the full time release date under the sentence imposed on 25 May 2011, and 39 months after the commencement of the total period of imprisonment of 71 months – whether setting the parole eligibility date beyond the midpoint of the total term of imprisonment made the sentence manifestly excessive – whether the sentencing judge erred in placing too much weight on the extent to which the parole eligibility date would post-date the full time release date under the original sentence

Corrective Services Act 2006 (Qld), s 184, s 209
Penalties and Sentences Act 1992 (Qld), s 4, s 160F, s 160G

Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 87 ALJR 98; [2012] HCA 55, cited
Gipp v The Queen (1998) 194 CLR 106; [1998] HCA 21, cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited
R v Bulmer [1997] QCA 34, followed
R v Kitson [2008] QCA 86, considered
R v Matue[2009] QCA 216, followed
R v McQuillan[2011] QCA 5, followed
R v Rowe[2011] QCA 372, followed

COUNSEL:

J McInnes for the applicant
B J Merrin for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. MUIR JA: I agree that the application should be refused for the reasons given by Fraser JA.

1. FRASER JA: On 28 June 2012 the applicant was convicted on his pleas of guilty and sentenced for numerous offences as follows: three and a half years imprisonment on each of four counts of break enter and steal, one count of fraud, one count of aggravated unlawful use of a motor vehicle and one count of aggravated dangerous operation of a motor vehicle; and lesser concurrent terms for three counts of fraud, three counts of attempted fraud, two…