R v Lawrence - [2010] QDC 145

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
3270/07

PROCEEDING:

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 324

COUNSEL:

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…

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 Lawrence

Details

AGLC: R v Lawrence [2010] QDC 145
Case: [2010] QDC 145
Decision Date: 31 March 2010

CaseChat Overview and Summary

In the case of R v Lawrence, the respondent sought to reopen their sentence under section 188 of the Penalties and Sentences Act 1992. The respondent argued that the sentencing judge was misled regarding the prospect of parole, leading to an unjust sentence. The court was tasked with determining whether the sentence was imposed based on a clear factual error and whether the court's understanding of parole eligibility influenced the sentencing decision. The appeal was heard in the Supreme Court of Queensland.

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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CITATION:	R v Lawrence [2010] QDC 145
PARTIES:	R. v Adam Leigh Lawrence (defendant)
FILE NO/S:	2330/07 2335/07 3270/07
PROCEEDING:	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 324
COUNSEL:	Mr K Spinaze for the Crown Mr A Lawrence for the defendant (self-represented)
SOLICITORS:	Office of the Director of Public Prosecutions