R v Holman - [1994] QCA 110

IN THE COURT OF APPEAL [1994] QCA 110

SUPREME COURT OF QUEENSLAND

C.A. No. 484 of 1993

Before

Fitzgerald P. McPherson JA. Pincus JA.

[R. v. Holman]

BETWEEN:

T H E Q U E E N

STEWART JOHN HOLMAN Applicant

C.A. No. 62 of 1994

BETWEEN:

STEWART JOHN HOLMAN Respondent

and

ATTORNEY-GENERAL OF QUEENSLAND Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 05/05/94

This proceeding involved two applications; the first was an application for leave to appeal against sentence by the prisoner, Holman; the other was an application by the Attorney- General for an extension of time within which to appeal against sentence. The latter application was based on the proposition that the orders made by the sentencing judge in the District Court at Brisbane did not give effect to his intention by reason of the operation of the Penalties and Sentences Act 1992.

On 3 December 1993, the prisoner pleaded guilty to a number of counts; 5 of housebreaking, 3 of burglary, 11 of stealing and 1 of breach of a probation order made in December, 1990, in respect of an earlier burglary offence. On the same day, he was sentenced to imprisonment for 3 years in respect of each of the breaking and entering and burglary counts, 18 months' imprisonment in respect of each of the stealing counts and 9 months' imprisonment in respect of the earlier burglary offence for which he had initially been placed on probation. All sentences, except that last mentioned, were ordered to be served concurrently; the sentence in respect of the earlier burglary offence following the breach of probation was made cumulative upon the other sentences.

At the time when he was sentenced, the prisoner had been
held in custody for 17 months in relation to the proceedings for

the offences for which he was sentenced and for no other reason.

In the course of his sentencing remarks, the judge said:

"I take into account that you have served the period to which I have already made reference. Using a multiplier of two, which seems to be the accepted arithmetic to apply to these sorts of situations, that produces a period of about two years nine months or thereabouts which I should regard that you have already served of any sentence."

His Honour then went on to impose the sentences earlier referred to.

It is plain from what was said that it was intended to impose sentences commencing from the date of sentencing and operating prospectively, and so much was not disputed in this Court. Further, it was accepted that, by virtue of subsection 161(1) of the Penalties and Sentences Act, that objective was not achieved. The Court was candidly informed by counsel who represented the Attorney-General and the Director of Prosecutions that this had not been appreciated until after the prisoner's application for leave to appeal; hence, the Attorney- General's application for an extension of time.

At the request of counsel for the prisoner, the Court ruled on…

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 Holman

Details

AGLC: R v Holman [1994] QCA 110
Case: [1994] QCA 110
Decision Date: 5/05/1994

CaseChat Overview and Summary

This case involved two applications, one from the prisoner, Holman, seeking leave to appeal against his sentence, and another from the Attorney-General for an extension of time to appeal against the sentence. The dispute centred around the interpretation and application of sections 158 and 161 of the Penalties and Sentences Act 1992 by the sentencing judge in the District Court at Brisbane. Holman had been in custody for 17 months prior to sentencing on various counts of housebreaking, burglary, and stealing. The sentencing judge imposed concurrent sentences of imprisonment, taking into account the time Holman had already served. However, the court found that the judge did not correctly apply the relevant sections of the Act, leading to potential discrepancies in the sentencing process.

The legal issues before the court were whether the sentencing judge properly applied sections 158 and 161 of the Penalties and Sentences Act 1992, and if the sentences imposed were manifestly excessive. The court was required to determine whether the sentences should be confirmed, reduced, or if the Attorney-General's application for an extension of time should be granted to correct the error. The court also had to consider whether the application for leave to appeal should be granted.

The Court of Appeal held that the sentencing judge did not correctly apply sections 158 and 161 of the Act, resulting in the sentences not accurately reflecting the time Holman had already spent in custody. The court concluded that section 161 should have been used instead of section 158, as the latter was unnecessary and potentially confusing. The court granted the Attorney-General's application for an extension of time and allowed the appeal to the extent that the time held in custody prior to sentencing was not to be taken as imprisonment already served under the sentence. The court confirmed the sentences imposed by the sentencing judge, except for the aspect related to the application of sections 158 and 161.

The court's reasoning was based on the interpretation of the relevant sections of the Penalties and Sentences Act 1992 and the need to ensure that the sentences accurately reflected the time Holman had already spent in custody. The court emphasised the importance of correctly applying the Act to avoid discrepancies in the sentencing process and ensure that the sentences were fair and just. The court also considered the submissions of both parties and the submissions made in R. v. Wishart and Jenkins, which provided guidance on the implementation of section 161.

Orders