R v Hogg

[2007] QDC 367

DISTRICT COURT OF QUEENSLAND

CITATION:	R v Hogg [2007] QDC 367
PARTIES:	THE QUEEN (respondent) v EWAN JOHN HOGG (applicant/defendant)
FILE NO/S:	413/06
DIVISION:	Criminal Jurisdiction
PROCEEDING:	Application to re-open sentence
ORIGINATING COURT:
District Court, Ipswich
DELIVERED ON:	28/05/2007
DELIVERED AT:	District Court Brisbane
HEARING DATE:	28/05/2007
JUDGE:	Kingham DCJ
ORDER:	Application to re-open sentence is declined
CATCHWORDS:	Penalties and Sentences Act 1992, s188

On 22 September 2006, on his plea of guilty to 4 counts of possession of child exploitation material, I sentenced Mr Hogg to 18 months imprisonment. When passing sentence I indicated that I would have fixed a parole eligibility date at 6 months but, taking into account his personal circumstances, considered a parole eligibility date of 22 December 2006, 3 months after sentence, was appropriate.

More than 8 months later, Mr Hogg is still in prison. Mr Hogg attests that his behaviour in prison has been exemplary. On 2 April 2007, a little over 6 months after being taken into custody, he was advised by the Southern Queensland Regional Parole Board that consideration of his application for parole has been deferred until it received the Exit Report from the Sexual Offending Program he has commenced. He attests that his progress through the program is being delayed to allow new participants to catch up with current participants.

Mr Hogg applies to reopen the sentence pursuant to s188 of the Penalties and Sentences Act 1992 on the basis that it was decided on a clear factual error of substance. The error asserted is that it was impossible for Mr Hogg to achieve parole at any point remotely near the eligibility date.

The application is out of time, having been made more than 28 days after the sentence was imposed. The Court has power to extend time. The reason for the delay is not explicit, although it appears from Mr Hogg’s affidavit that it did not become evident to him until after that period had expired that he would not be able to achieve parole on or near his eligibility date. That, in itself, demonstrates the difficulty for Mr Hogg in succeeding in his application. That is, it was not evident until some time later that he might not achieve parole near his eligibility date.

Recourse to s188 is limited, must be based on clear statutory criteria and is not an avenue for judicial review of administrative decisions (R v Cassar [2001] QCA 300). The error of fact must be decisive in respect to the imposition of the sentence (R v Gardiner [2004] QCA 117) and it must be an error as to facts existing at the time of the sentence (R v Voss [2001] QCA 483). That is, it not sufficient for me to be persuaded, having regard to events which have occurred since I imposed the sentence, that it is in the interests of justice to reopen and vary the sentence.

2006 amendments to the Penalties and Sentences Act conferred on the courts…