R v Laing - [2003] QCA 477

SUPREME COURT OF QUEENSLAND

CITATION: R v Laing [2003] QCA 477
PARTIES: R
v
LAING, Sharee Ann
(applicant)
FILE NO/S: CA No 254 of 2003
DC No 1353 of 2002
DC No 1589 0f 2003
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING
COURT: District Court at Brisbane

DELIVERED EXTEMPORE ON:

3 November 2003
DELIVERED AT: Brisbane
HEARING DATE: 3 November 2003
JUDGES: McMurdo P, Davies JA and Mullins J
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made

ORDERS:

1.

Grant the application for leave to appeal against sentence

2.

Allow the appeal and set aside the sentences imposed for the offences on indictment 1353 of 2002

3.

In lieu of the sentence for the count of grievous bodily harm that was imposed by the learned sentencing judge, sentence the applicant to a term of three and one half years’ imprisonment with a recommendation that the applicant be eligible for post prison community based release after serving a period of 14 months

4.

In lieu of the sentence that was imposed for the offence of dangerous operation of a motor vehicle with a circumstance of aggravation, sentence the applicant to a term of 15 months’ imprisonment

5.

In respect of both these terms of imprisonment declare that the 124 days spent in pre-sentence custody comprising 64 days between 9 March 2001 and 11 May 2001 and comprising 60 days between 2 June 2003 and 31 July 2003 be declared time already served under these two sentences
6. Order that these sentences be concurrent with the

sentence imposed on 31 July 2003 for unlawful use of a motor vehicle and the suspended sentence that was also activated on that day

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – where applicant sentenced to terms of imprisonment on two separate indictments – where all terms imposed to be served concurrently – where applicant spent 124 days in pre-sentence custody in respect of offences on one and not the other indictment – where learned sentencing judge did not make a declaration under s 161 Penalties and Sentences Act but took that period into account in fixing the time for eligibility for parole – where learned sentencing judge considered that the making of a declaration under s 161 in respect of offences on one indictment would have precluded making concurrent the term of imprisonment imposed for the offence on the other indictment and the activated suspended sentence – sentences do not require the same start date to be concurrent – error of principle – applicant re-sentenced – declaration as to pre-sentence custody made
COUNSEL: The applicant appeared on her own behalf
C Heaton for the respondent
SOLICITORS: The applicant appeared on her own behalf
Director of Public Prosecutions (Queensland) for the
respondent

MULLINS J: The applicant, who is unrepresented, applies for the unlawful use of a motor vehicle. The applicant was sentenced to three and one half…

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 Laing

Details

AGLC: R v Laing [2003] QCA 477
Case: [2003] QCA 477
Decision Date: 3/11/2003

CaseChat Overview and Summary

The case of R v Laing involved the applicant appealing against his sentence after being convicted on two separate indictments. The applicant was sentenced to terms of imprisonment on both indictments, with all terms to be served concurrently. The applicant had spent 124 days in pre-sentence custody for one set of offences but not for the other. The sentencing judge did not make a declaration under section 161 of the Penalties and Sentences Act, although they did take the period of pre-sentence custody into account when determining the eligibility for parole. The applicant argued that an error of principle had occurred because the sentences did not require the same start date to be considered concurrent.

The legal issues before the court were whether the sentencing judge erred in principle by not making a declaration under section 161 and by taking the pre-sentence custody into account without making such a declaration. The court had to determine if the failure to make a declaration precluded the making of concurrent terms of imprisonment and whether this constituted an error of principle. Additionally, the court had to consider whether the concurrent sentencing was appropriate in the circumstances.

The court found that the failure to make a declaration under section 161 did not preclude the making of concurrent terms of imprisonment, as the sentences did not require the same start date to be concurrent. However, the court identified an error of principle in the sentencing judge's approach to the pre-sentence custody period. The court concluded that the applicant should be re-sentenced and that a declaration regarding the pre-sentence custody should be made. The sentences were to be adjusted accordingly, ensuring that the period of pre-sentence custody was appropriately accounted for.

The orders of the court were that the applicant be re-sentenced with a declaration made regarding the period of pre-sentence custody. This was to ensure that the terms of imprisonment were correctly accounted for in relation to the concurrent sentencing.

Orders

Orders of the court

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Laing [2003] QCA 477
PARTIES:	R v LAING, Sharee Ann (applicant)
FILE NO/S:	CA No 254 of 2003 DC No 1353 of 2002 DC No 1589 0f 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EXTEMPORE ON:	3 November 2003
DELIVERED AT:	Brisbane
HEARING DATE:	3 November 2003
JUDGES:	McMurdo P, Davies JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:	1.	Grant the application for leave to appeal against sentence
2.	Allow the appeal and set aside the sentences imposed for the offences on indictment 1353 of 2002
3.	In lieu of the sentence for the count of grievous bodily harm that was imposed by the learned sentencing judge, sentence the applicant to a term of three and one half years’ imprisonment with a recommendation that the applicant be eligible for post prison community based release after serving a period of 14 months
4.	In lieu of the sentence that was imposed for the offence of dangerous operation of a motor vehicle with a circumstance of aggravation, sentence the applicant to a term of 15 months’ imprisonment
5.	In respect of both these terms of imprisonment declare that the 124 days spent in pre-sentence custody comprising 64 days between 9 March 2001 and 11 May 2001 and comprising 60 days between 2 June 2003 and 31 July 2003 be declared time already served under these two sentences
6.	Order that these sentences be concurrent with the
sentence imposed on 31 July 2003 for unlawful use of a motor vehicle and the suspended sentence that was also activated on that day

CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – where applicant sentenced to terms of imprisonment on two separate indictments – where all terms imposed to be served concurrently – where applicant spent 124 days in pre-sentence custody in respect of offences on one and not the other indictment – where learned sentencing judge did not make a declaration under s 161 Penalties and Sentences Act but took that period into account in fixing the time for eligibility for parole – where learned sentencing judge considered that the making of a declaration under s 161 in respect of offences on one indictment would have precluded making concurrent the term of imprisonment imposed for the offence on the other indictment and the activated suspended sentence – sentences do not require the same start date to be concurrent – error of principle – applicant re-sentenced – declaration as to pre-sentence custody made
COUNSEL:	The applicant appeared on her own behalf C Heaton for the respondent
SOLICITORS:	The applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent