R v. Hooson - [2005] QSC 14

[2005] QSC 14

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

FRYBERG J

Indictment No 413 of 2004

THE QUEEN

DANIEL PETER HOOSON

BRISBANE

..DATE 09/02/2005

SENTENCE

HIS HONOUR: This matter came before me two days ago for sentencing. For reasons which I then gave, I indicated my intention to sentence the prisoner to probation and community service pursuant to section 109 of the Penalties and Sentences Act. However, a question arose as to whether I had power to make such orders, particularly the probation order, in the circumstances of the case. The circumstances were that the prisoner is presently serving a period of imprisonment of three months and two weeks imposed upon him on 10 December 2004 in the Magistrates Court.

There has been some authority to the effect that a sentence of probation cannot be imposed concurrently with a sentence of imprisonment. The high point of that line of authority is probably the decision of Hughes [1999] 1 Queensland Reports 389 where it was held that a probation order could not operate concurrently with a prison sentence. More recently, however, the width of that interpretation of that line of authorities has been doubted - see, in particular, the judgment of Jerrard JA in Daly [2004] QCA 385. It has also been held in the Court of Appeal that a probation order and a suspended sentence of imprisonment may be imposed concurrently - see Sysel v. Dinon [2003] 1 Queensland Reports 212.

The more recent authorities indicate that the proper approach in any mixing of sentences is to consider whether there is an actual impossibility or inconsistency between the sentences being imposed. Counsels' researches have not disclosed a case where the question of a community based order being imposed upon someone already serving a sentence of imprisonment has been considered. However, it seems to me that the approach recognised in the more recent cases is one which ought to be applied in these circumstances.

As a participant in the decision in Hughes, I must say that in the light of later experience I think there is a good deal to be said for the approach suggested by Jerrard JA at paragraph [24] of his reasons in Daly. I therefore propose to make the community service orders which I foreshadowed two days ago.

It is, however, necessary to give some consideration to the particular requirements of the orders so as to ensure that there is no conflict between them and the prisoner's present status. The sentence of three months and two weeks will expire on 23 March. That is some month and a-half from now. I have proposed imposing a sentence of probation for 18 months and community service to be performed of 60 hours to be performed over 12 months.

It does not seem to me that the effect of either of these orders would be nullified if performance of the requirements of them should be deferred until after the release of the prisoner on his current term of…

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. Hooson

Details

AGLC: R v Hooson [2005] QSC 14
Case: [2005] QSC 14
Decision Date: 09/02/2005

CaseChat Overview and Summary

The case of R v. Hooson was heard in the Supreme Court of Queensland. The defendant, Daniel Peter Hooson, was being sentenced for an offence. The court was tasked with determining whether it could impose a sentence of probation and community service on Hooson, who was currently serving a three-month and two-week prison sentence. The primary legal issue was whether a probation order could be imposed concurrently with a sentence of imprisonment, considering the conflicting authorities on the matter.

The court reviewed the existing case law, acknowledging the earlier decision in Hughes, which held that probation orders could not operate concurrently with prison sentences. However, more recent cases, such as Daly and Sysel v. Dinon, suggested that the approach should focus on whether there was an actual impossibility or inconsistency between the sentences imposed. Given the lack of precedent on the specific issue of community-based orders for someone already serving a prison term, the court decided to adopt the approach suggested in the later cases. The court concluded that there was no actual inconsistency between the probation and community service orders and the defendant's current imprisonment. The court also addressed the potential conflict regarding the defendant's requirement to report to an authorised Corrective Services officer. After considering the arguments and the potential for conflicting interpretations of the relevant sections of the Corrective Services Act 2000 and the Penalties and Sentences Act 1992, the court decided to impose a reporting requirement that the defendant report within two days of his release from prison.

Ultimately, the court sentenced Hooson to 18 months of probation and 60 hours of community service, subject to the reporting requirement. The court made these orders, considering the defendant's agreement and the lack of any other potential inconsistencies.

Orders