R v Maclean and Bannerman - [2000] QCA 367

SUPREME COURT OF QUEENSLAND

CITATION: R v Maclean and Bannerman [2000] QCA 367

PARTIES: R
v
MACLEAN, Brett Stephen
(applicant/appellant)
BANNERMAN, Toni-Lee
(applicant/appellant)

FILE NO/S: CA No 71 of 2000
CA No 98 of 2000
DC No 516 of 1999
DC No 517 of 1999

DIVISION: Court of Appeal

PROCEEDING: Sentence Applications

ORIGINATING COURT:
District Court at Southport

DELIVERED ON: 12 September 2000

DELIVERED AT: Brisbane

HEARING DATE: 21 August 2000

JUDGES:
McPherson and Thomas JJA, Atkinson J

Separate reasons for judgment of each member of the Court,
each concurring as to the orders made

ORDER: Leave to appeal granted in each case and appeals allowed. In Maclean's case, sentence below set aside and replaced with that stated in paragraph [18] of the reasons for judgment. In Bannerman's case, sentence below set aside and replaced with that stated in paragraph [30] of the reasons for judgment.

CATCHWORDS:
CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – OFFENCES COMMITTED WHILE ON BAIL OR PROBATION AND EFFECT OF BREACH OF PROBATION

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCE, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE – SENTENCE DURING UNEXPIRED SENTENCE

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – RECOGNISANCE, PROBATION AND OTHER NON-CUSTODIAL ORDERS – PROBATION ORDERS AND SUSPENSION OF SENTENCE – GENERALLY

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS - sentences – where first applicant re-offended during operational period of two suspended sentences – where applicant sentenced to serve 12 months of balance of one suspended sentence to commence upon the expiration of a four year term imposed in respect of the new offences – where parole recommendation after two years – whether error of law in making parole recommendation that would take effect before commencement of the one year portion of the suspended sentence – re-sentencing - where second applicant re-offended whilst on parole for earlier offences – where factual error as to the length of time left to serve in original sentence affected the sentence imposed – re-sentencing – power of the court to make a parole recommendation on the new sentence that would take effect prior to the parole eligibility date on the balance of the original term which the applicant is required to serve by reason of s 187 of the Corrective Services Act 1988 – power under s 157(2) (not s 157(3)) of the Penalties and Sentences Act 1992

Corrective Services Act 1988 (Qld), s 166(2), s 187, s 190(2)
Penalties and Sentences Act 1992 (Qld), s 147(1), s 157(2), s 157(3)

Neal v The Queen (1982) 149 CLR 305, cited
R v Ho ex parte A-G [2000] QCA 283, CA No 114 of 2000, 21 July 2000, considered
R v McCormick ex parte A-G [1999] QCA 354, CA No 205 of 1999, 27 August…

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.

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Details

Case: [2000] QCA 367
Decision Date: 12 September 2000

CaseChat Overview and Summary

The applicants in this case were convicted of separate offences and were subject to different sentences that involved suspended sentences and parole. Maclean was sentenced to a four-year term, with the final year suspended, and was also subject to a three-year suspended sentence for a separate offence. Bannerman was sentenced to a two-year term, with the final six months suspended, and was on parole for an earlier offence when he committed the current offence. Both applicants appealed against their sentences, arguing that the trial judge made errors in calculating the length of time they had to serve and in making parole recommendations.

The legal issues before the court involved the interpretation and application of sections 157(2) and 157(3) of the Penalties and Sentences Act 1992, and section 187 of the Corrective Services Act 1988. The court had to determine whether the trial judge erred in making a parole recommendation that would take effect before the commencement of the one-year portion of the suspended sentence in Maclean's case, and whether the trial judge had the power to make a parole recommendation on the new sentence that would take effect prior to the parole eligibility date on the balance of the original term in Bannerman's case.

The court found that the trial judge erred in making a parole recommendation that would take effect before the commencement of the one-year portion of the suspended sentence in Maclean's case. The court also found that the trial judge had the power to make a parole recommendation on the new sentence that would take effect prior to the parole eligibility date on the balance of the original term in Bannerman's case. The court held that the trial judge should have exercised its discretion under section 157(2) of the Penalties and Sentences Act 1992, rather than section 157(3), when making the parole recommendation in Bannerman's case. The court set aside the sentences imposed by the trial judge and re-sentenced the applicants accordingly.

In Maclean's case, the court replaced the sentence below with a sentence of imprisonment for four years, with the final year suspended, and ordered that the applicant be released on parole after serving two years. In Bannerman's case, the court replaced the sentence below with a sentence of imprisonment for two years, with the final six months suspended, and ordered that the applicant be released on parole after serving six months. Leave to appeal was granted in each case and the appeals were allowed.

Orders

Orders of the court

Leave to appeal granted in each case and appeals allowed. In Maclean's case, sentence below set aside and replaced with that stated in paragraph [18] of the reasons for judgment. In Bannerman's case, sentence below set aside and replaced with that stated in paragraph [30] of the reasons for judgment.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Maclean and Bannerman [2000] QCA 367
PARTIES:	R v MACLEAN, Brett Stephen (applicant/appellant) BANNERMAN, Toni-Lee (applicant/appellant)
FILE NO/S:	CA No 71 of 2000 CA No 98 of 2000 DC No 516 of 1999 DC No 517 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Applications
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	12 September 2000
DELIVERED AT:	Brisbane
HEARING DATE:	21 August 2000
JUDGES:	McPherson and Thomas JJA, Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Leave to appeal granted in each case and appeals allowed. In Maclean's case, sentence below set aside and replaced with that stated in paragraph [18] of the reasons for judgment. In Bannerman's case, sentence below set aside and replaced with that stated in paragraph [30] of the reasons for judgment.
CATCHWORDS:	CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – OFFENCES COMMITTED WHILE ON BAIL OR PROBATION AND EFFECT OF BREACH OF PROBATION CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCE, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE – SENTENCE DURING UNEXPIRED SENTENCE CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – RECOGNISANCE, PROBATION AND OTHER NON-CUSTODIAL ORDERS – PROBATION ORDERS AND SUSPENSION OF SENTENCE – GENERALLY CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS - sentences – where first applicant re-offended during operational period of two suspended sentences – where applicant sentenced to serve 12 months of balance of one suspended sentence to commence upon the expiration of a four year term imposed in respect of the new offences – where parole recommendation after two years – whether error of law in making parole recommendation that would take effect before commencement of the one year portion of the suspended sentence – re-sentencing - where second applicant re-offended whilst on parole for earlier offences – where factual error as to the length of time left to serve in original sentence affected the sentence imposed – re-sentencing – power of the court to make a parole recommendation on the new sentence that would take effect prior to the parole eligibility date on the balance of the original term which the applicant is required to serve by reason of s 187 of the Corrective Services Act 1988 – power under s 157(2) (not s 157(3)) of the Penalties and Sentences Act 1992 Corrective Services Act 1988 (Qld), s 166(2), s 187, s 190(2) Penalties and Sentences Act 1992 (Qld), s 147(1), s 157(2), s 157(3) Neal v The Queen (1982) 149 CLR 305, cited R v Ho ex parte A-G [2000] QCA 283, CA No 114 of 2000, 21 July 2000, considered R v McCormick ex parte A-G [1999] QCA 354, CA No 205 of 1999, 27 August…