R v Herberts - [2023] QSC 157

SUPREME COURT OF QUEENSLAND

CITATION:

R v Herberts [2023] QSC 157

PARTIES:

R
v
HERBERTS, K M
(defendant)

FILE NO/S:

SC No 224 of 2023

DIVISION:

Trial Division

PROCEEDING:

Breach of Suspended Sentence

DELIVERED ON:

2 June 2023, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

2 June 2023

JUDGE:

Bowskill CJ

ORDERS:

1.   Find the breach of the suspended sentence proven.

2.   Order that the defendant serve the whole of the suspended imprisonment.

3.   Fix the day of the hearing, 2 June 2023, as the date the defendant be released on parole.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – NON-CUSTODIAL ORDERS – SUSPENDED SENTENCE OF IMPRISONMENT – BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH – where the defendant was initially sentenced to 2 years and 6 months’ imprisonment, to be suspended for an operational period of three years after serving 105 days – where the defendant breached the suspended sentence as a consequence of being convicted of further offences – whether, if the defendant was ordered to serve part or all of the suspended term of imprisonment, s 160B(2) of the Penalties and Sentences Act 1992 (Qld), which requires the court to fix a parole eligibility date (rather than a parole release date) for an offender who has had a court-ordered parole order cancelled, would apply

Penalties and Sentences Act 1992 (Qld), s 4, s 144, s 145, s 147, s 160, s 160A(1), s 160B(2)

R v Newman [2008] QCA 147, considered

R v Norden [2009] 2 Qd R 455; [2009] QCA 42, cited

COUNSEL:

S Poplawski (sol) for the Crown
J Coburn (sol) for the defendant

SOLICITORS:

Director of Public Prosecutions (Queensland) for the Crown

A W Bale & Son Solicitors for the defendant

Ms Herberts, you appear before the Court today for breach of the suspended sentence imposed on you in this Court on 15 November 2021. On that day, you were sentenced to 2 years and 6 months’ imprisonment for possession of methylamphetamine. That sentence was ordered to be suspended, for an operational period of three years, after you had served 105 days. As you had already served that 105 days by the date of the sentence, you were released from custody on that day.
I note that, in fact, you had served more than 105 days in the lead up to that sentencing hearing. You were in custody for about 14 months all up, which came about because you had breached a parole order in relation to an earlier sentence.
It is relevant to note that the drug possession offence that you were sentenced for was possessing 5.256 grams of methylamphetamine in just under 7.5 grams of substance, and that was on the basis that you possessed the drugs for your personal use, not commercial sale or distribution. But you were also being sentenced for other offences, including attempting to pervert the course of justice and driving dangerously and without a licence. Given your…

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 Herberts

Details

AGLC: R v Herberts [2023] QSC 157
Case: [2023] QSC 157
Decision Date: 2 June 2023, ex tempore

CaseChat Overview and Summary

The case of R v Herberts involved the defendant, Herberts, who had been sentenced to a suspended sentence of imprisonment following a conviction. The initial sentence was for a term of 2 years and 6 months, to be suspended after serving 105 days, with an operational period of three years. Herberts subsequently breached the conditions of his suspended sentence by committing further offences. The legal issue before the court was whether the provisions of s 160B(2) of the Penalties and Sentences Act 1992 (Qld), which requires the court to fix a parole eligibility date rather than a parole release date for an offender whose court-ordered parole order has been cancelled, would apply in the circumstances where Herberts was ordered to serve part or all of the suspended term of imprisonment.

The court determined that Herberts had indeed breached the suspended sentence as a result of his further convictions. In addressing the application of s 160B(2), the court concluded that the provision did not apply to the situation where the defendant was ordered to serve part or all of the suspended term of imprisonment. Consequently, the court found that Herberts was to serve the entire suspended imprisonment term. The court fixed the day of the hearing, 2 June 2023, as the date Herberts would be released on parole. This decision ensured that Herberts would be eligible for parole on that date, in accordance with the relevant sentencing provisions.

Orders

Orders of the court

1. Find the breach of the suspended sentence proven.

2. Order that the defendant serve the whole of the suspended imprisonment.

3. Fix the day of the hearing, 2 June 2023, as the date the defendant be released on parole.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Herberts [2023] QSC 157
PARTIES:	R v HERBERTS, K M (defendant)
FILE NO/S:	SC No 224 of 2023
DIVISION:	Trial Division
PROCEEDING:	Breach of Suspended Sentence
DELIVERED ON:	2 June 2023, ex tempore
DELIVERED AT:	Brisbane
HEARING DATE:	2 June 2023
JUDGE:	Bowskill CJ
ORDERS:	1. Find the breach of the suspended sentence proven. 2. Order that the defendant serve the whole of the suspended imprisonment. 3. Fix the day of the hearing, 2 June 2023, as the date the defendant be released on parole.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – NON-CUSTODIAL ORDERS – SUSPENDED SENTENCE OF IMPRISONMENT – BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH – where the defendant was initially sentenced to 2 years and 6 months’ imprisonment, to be suspended for an operational period of three years after serving 105 days – where the defendant breached the suspended sentence as a consequence of being convicted of further offences – whether, if the defendant was ordered to serve part or all of the suspended term of imprisonment, s 160B(2) of the Penalties and Sentences Act 1992 (Qld), which requires the court to fix a parole eligibility date (rather than a parole release date) for an offender who has had a court-ordered parole order cancelled, would apply Penalties and Sentences Act 1992 (Qld), s 4, s 144, s 145, s 147, s 160, s 160A(1), s 160B(2) R v Newman [2008] QCA 147, considered R v Norden [2009] 2 Qd R 455; [2009] QCA 42, cited
COUNSEL:	S Poplawski (sol) for the Crown J Coburn (sol) for the defendant
SOLICITORS:	Director of Public Prosecutions (Queensland) for the Crown A W Bale & Son Solicitors for the defendant