R v Johnson

[2007] QCA 433

SUPREME COURT OF QUEENSLAND

CITATION:

R v Johnson [2007] QCA 433

PARTIES:

R
v
JOHNSON, Russ Douglas  
(applicant/appellant)

FILE NO/S:

CA No 151 of 2007
SC No 5 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Mt Isa

DELIVERED ON:

7 December 2007

DELIVERED AT:

Brisbane

HEARING DATE:

29 November 2007

JUDGES:

Williams, Keane and Holmes JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal granted
2. Appeal allowed
3. Sentences below set aside

4. The applicant is sentenced to eight years imprisonment on the first count and seven years imprisonment on the second count.  These sentences are to be served concurrently.  A period of 351 days is declared as time already served.  The applicant's parole eligibility date is fixed at 27 November 2008  

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – POWERS OF APPELLATE COURT – where applicant convicted of one count of trafficking in methylamphetamine and one count of trafficking in cannabis sativa – where applicant sentenced to nine years imprisonment on first count and a concurrent sentence of seven years imprisonment on second count – where sentence affected by error in that different parole eligibility dates fixed on each count – where Court required to resentence applicant

AB v The Queen (1999) 198 CLR 111, applied

R v Coleman [2006] QCA 442; CA No 213 of 2006,
3 November 2006, considered

COUNSEL:

A W Moynihan SC for the applicant/appellant
S G Bain for the respondent

SOLICITORS:

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

1. WILLIAMS JA:  I agree with Keane JA.

1. KEANE JA:  On 28 March 2007 the applicant was sentenced, following his plea of guilty to an ex officio indictment, in respect of one count of trafficking in the dangerous drug methylamphetamine between 1 January 2001 and 3 April 2006, and one count of trafficking in the dangerous drug cannabis sativa between 1 January 2001 and 3 April 2006.

1. On the first count he was sentenced to nine years imprisonment with a parole eligibility date of 27 March 2009.  On the second count he was sentenced to a concurrent sentence of seven years imprisonment with a parole eligibility date of

   
   

   27 June 2008.  A period of pre-sentence custody of 351 days was declared as time already served under these sentences.

1. It is not disputed by the respondent that, under s 160C, s 160E and s 160F of the Penalties and Sentences Act 1992 (Qld) ("the Act"), only one parole eligibility date should have been fixed by the learned sentencing judge.

1. Having regard to the learned sentencing judge's error in fixing two parole eligibility dates, it is, I think, necessary in the interests of justice to grant leave to appeal to ensure that sentence is lawfully passed on…