R v Martin, Anderson and Anderson

SUPREME COURT OF QUEENSLAND

CITATION:

R v Martin, Anderson & Anderson [2010] QCA 77

PARTIES:

R
v
MARTIN, Henry Allan
(applicant)
ANDERSON, Gregory Paul
(applicant)
ANDERSON, Bradley Thomas
(applicant)

FILE NO/S:

Appeal No 330 of 2009
Appeal No 332 of 2009
Appeal No 333 of 2009
DC No 206 of 2009
DC No 238 of 2009
DC No 857 of 2009
DC No 858 of 2009
DC No 863 of 2009
DC No 864 of 2009
DC No 865 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Applications

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED EX TEMPORE ON:

31 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2010

JUDGES:

Muir and Fraser JJA and Applegarth J
Judgment of the Court

ORDERS:

1. The applications for leave to appeal against sentence of Henry Allan Martin and Gregory Paul Anderson be dismissed;

2. The application for leave to appeal against sentence of Bradley Thomas Anderson be granted and the appeal be allowed, but only to the extent that the parole eligibility date of 2 October 2010 be set aside and a parole eligibility date of 2 September 2010 be substituted.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where primary judge erroneously calculated parole eligibility date – whether Court can exercise discretion to rectify parole eligibility date

COUNSEL:

The applicants appeared on their own behalf
B J Power for the respondent

SOLICITORS:

The applicants appeared on their own behalf
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: In these matters Mr Henry Martin, Mr Gregory Anderson and Mr Bradley Anderson appeared unrepresented. It emerged in the course of the hearing that none of the applicants for leave to appeal against sentence intended to pursue their applications.

Accordingly, in the case of Henry Allan Martin and Gregory Paul Anderson, the order of the Court will be that the applications for leave to appeal against sentence be dismissed. In the case of Bradley Anderson, however, it appears that as a result of an erroneous calculation by the learned primary Judge, the parole eligibility date was mistakenly set at 2 October 2010 instead of 2 September 2010. Counsel for the respondent has taken the Court through the process by which that error was made. He accepts that it is appropriate that the sentence be varied to correct the error.

Accordingly, the order of the Court in Mr Bradley Anderson's application is that the application for leave to appeal be granted and that the appeal be allowed, but only to the extent that the parole eligibility date of 2 October 2010 be set aside and a parole eligibility date of 2 September 2010 be substituted.

CaseChat Overview and Summary

The appellants, Henry Allan Martin, Gregory Paul Anderson and Bradley Thomas Anderson, sought leave to appeal against their respective sentences on various grounds, including the primary judge's erroneous calculation of the parole eligibility date for Bradley Thomas Anderson. The Court of Appeal was asked to determine whether it could exercise its discretion to rectify the parole eligibility date, given the clear error in calculation. The appellants contended that the error materially affected the overall sentence and thus warranted correction. The Crown opposed the appeals on the basis that the error was a simple arithmetic mistake that did not impact the overall sentence and that the Court should not interfere with the primary judge's discretion in this regard.

The Court of Appeal found that while the error in calculating the parole eligibility date was evident, it did not substantially affect the overall sentence. The Court emphasised that the primary judge's discretion regarding parole eligibility dates should not be lightly interfered with, except in cases where there is a clear error of law or a significant impact on the sentence. In this instance, the Court determined that the error, though apparent, did not materially affect the appellants' sentences. However, in the case of Bradley Thomas Anderson, the Court exercised its discretion to correct the error, substituting the parole eligibility date of 2 October 2010 with 2 September 2010. The Court dismissed the appeals of Henry Allan Martin and Gregory Paul Anderson, while allowing the appeal of Bradley Thomas Anderson to the extent of rectifying the parole eligibility date.

The Court's decision highlights the limited circumstances under which the Court of Appeal will exercise its discretion to correct a primary judge's calculation errors regarding parole eligibility dates. The Court stressed that such errors must have a material impact on the sentence for the Court to consider rectification. In this case, the Court found that while the error was clear, it did not substantially affect the overall sentence of Bradley Thomas Anderson, but nonetheless chose to correct it due to its evident nature. The final orders of the Court were to dismiss the appeals of Henry Allan Martin and Gregory Paul Anderson, and to allow the appeal of Bradley Thomas Anderson, substituting the parole eligibility date of 2 October 2010 with 2 September 2010.

Orders of the court

1. The applications for leave to appeal against sentence of Henry Allan Martin and Gregory Paul Anderson be dismissed;

2. The application for leave to appeal against sentence of Bradley Thomas Anderson be granted and the appeal be allowed, but only to the extent that the parole eligibility date of 2 October 2010 be set aside and a parole eligibility date of 2 September 2010 be substituted.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	R v Martin, Anderson & Anderson [2010] QCA 77
PARTIES:	R v MARTIN, Henry Allan (applicant) ANDERSON, Gregory Paul (applicant) ANDERSON, Bradley Thomas (applicant)
FILE NO/S:	Appeal No 330 of 2009 Appeal No 332 of 2009 Appeal No 333 of 2009 DC No 206 of 2009 DC No 238 of 2009 DC No 857 of 2009 DC No 858 of 2009 DC No 863 of 2009 DC No 864 of 2009 DC No 865 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Applications
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED EX TEMPORE ON:	31 March 2010
DELIVERED AT:	Brisbane
HEARING DATE:	31 March 2010
JUDGES:	Muir and Fraser JJA and Applegarth J Judgment of the Court
ORDERS:	1. The applications for leave to appeal against sentence of Henry Allan Martin and Gregory Paul Anderson be dismissed; 2. The application for leave to appeal against sentence of Bradley Thomas Anderson be granted and the appeal be allowed, but only to the extent that the parole eligibility date of 2 October 2010 be set aside and a parole eligibility date of 2 September 2010 be substituted.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where primary judge erroneously calculated parole eligibility date – whether Court can exercise discretion to rectify parole eligibility date
COUNSEL:	The applicants appeared on their own behalf B J Power for the respondent
SOLICITORS:	The applicants appeared on their own behalf Director of Public Prosecutions (Queensland) for the respondent