DISTRICT COURT OF QUEENSLAND
CITATION:
R v Lawrence [2010] QDC 145
PARTIES:
R.
v
Adam Leigh Lawrence
(defendant)FILE NO/S:
2330/07
2335/07
3270/07PROCEEDING:
Application for sentence re-opening
DELIVERED ON:
31 March 2010
DELIVERED AT:
Brisbane
JUDGE:
Rackemann DCJ
ORDER:
That the application for sentence re-opening pursuant to section 188(c) of the Penalties and Sentences Act 1992 be dismissed.
CATCHWORDS:
CRIMINAL LAW – Application for sentence reopening – Penalties and Sentences Act 1992 – whether the sentence was imposed on clear factual error of substance - parole eligibility – parole not granted – whether court was mislead as to whether there was a reasonable prospect of parole - whether this came within the ambit of section 188(c)
Penalties and Sentences Act 1992
R v MacKenzie [2002] 1 QdR 410
R v. Cassar ex parte Attorney-General [2002] 1 QdR 386
R v. Ronkovich [2007] QCA 193
R v. Daly [2004] QCA 324COUNSEL:
Mr K Spinaze for the Crown
Mr A Lawrence for the defendant (self-represented)SOLICITORS:
Office of the Director of Public Prosecutions
HIS HONOUR: This is an application by Mr Lawrence to reopen the sentence which I pronounced on the 12th of February 2008. On that day Mr Lawrence was dealt with for a number of offences. He was sentenced to varying terms of imprisonment, one of which was to be served cumulatively. The result was that he was effectively sentenced to four years imprisonment, but I reflected the matters in his favour by affording him an early parole eligibility date of the 23rd of July 2008. I did that after declaring 286 days of pre-sentence custody as time already served under the sentence.
At the time of sentencing I specifically asked whether there was any circumstance which might mean that parole was not reasonably achievable for Mr Lawrence, and I was informed that there was not. Mr Lawrence claims that I was misled in that regard and that accordingly, I have power to reopen the sentence under section 188(c) of the Penalties and Sentences Act 1992, which provides as follows.
Section 188(1) Court may reopen sentencing proceedings
(1) If a Court has in, or in connection with, a criminal proceeding, including proceeding on appeal –
(c)Imposed a sentence decided on a clear factual error of substance
...
the Court, whether or not differently constituted, may reopen the proceeding.
Notwithstanding the early parole eligibility date, Mr Lawrence was not released from custody onto parole as the order envisaged. Indeed, up until today he remains in custody, as a consequence of which he has served something approaching three-quarters of his sentence.
His first application for parole was subject to a decision dated the 18th of November 2008. A statement of reasons for that decision is before me as Exhibit 2. The next application was decided in September 2009. Again, the statement of reasons is before the Court as Exhibit 3.
The first statement of reasons says that, notwithstanding the judicial recommendation for parole, the Board had concluded that Mr Lawrence…
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- AGLC
- R v Lawrence [2010] QDC 145
- Case
- [2010] QDC 145
- Decision Date
CaseChat Overview and Summary
The central legal issues revolved around the interpretation and application of section 188(c) of the Penalties and Sentences Act 1992. The respondent contended that the sentencing judge's perception of parole prospects constituted a clear factual error, warranting sentence re-opening. The court had to assess whether the judge's understanding of parole eligibility was incorrect and if this misunderstanding was material to the sentencing decision. Additionally, the court examined whether the error fell within the scope of section 188(c) of the Act.
The court concluded that the sentencing judge's understanding of parole eligibility was not a clear factual error. The respondent's eligibility for parole was accurately assessed, and the judge's decision did not hinge on this factor. The court held that the sentence was not influenced by any misapprehension about parole prospects, and therefore, did not fall within the scope of section 188(c). Consequently, the application for sentence re-opening was dismissed.
No further orders were made beyond the dismissal of the application. The respondent's appeal was unsuccessful, and the original sentence remained in place.
Orders
Orders of the court
That the application for sentence re-opening pursuant to section 188(c) of the Penalties and Sentences Act 1992 be dismissed.
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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