R v Noble

[2011] QCA 172

SUPREME COURT OF QUEENSLAND

CITATION:

R v Noble [2011] QCA 172

PARTIES:

R
v
NOBLE, Alfred James
(applicant)

FILE NO/S:

CA No 162 of 2011
DC No 99 of 2011
DC No 154 of 2011
DC No 160 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED EX TEMPORE ON:

22 July 2011

DELIVERED AT:

Brisbane

HEARING DATE:

22 July 2011

JUDGES:

Muir JA, P D McMurdo and Dalton JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Application for leave to appeal against sentence granted.

2.    Set aside the orders made for the offence of unlawful wounding, and for the suspension of each sentence.

3.    Applicant sentenced on the count of unlawful wounding to 17 months’ imprisonment.

4.    Applicant released on parole today.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where applicant was convicted upon his plea of guilty of one count of unlawful wounding and other offences – where the applicant was sentenced to various terms of imprisonment including two years imprisonment for the unlawful wounding offence – where the applicant had served 213 days in custody – where the applicant seeks leave to appeal against sentence – whether the application for leave to appeal should be granted

Corrective Services Act 2006 (Qld)
Penalties & Sentences Act 1992 (Qld)

COUNSEL:

The applicant appeared on his own behalf
D R Kinsella for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA:  I invite Justice McMurdo to give the first judgment.

P D McMURDO J:  The applicant was convicted upon his plea of guilty of one count of unlawful wounding, two counts of common assault, four offences involving the breach of a domestic and family violence order, three breaches of bail conditions and one offence of obstructing police.

He was sentenced in the District Court to terms of imprisonment ranging from two years for the unlawful wounding to three months for the bail offences and that of obstructing police.

As the prosecutor informed the Judge, by the date of the sentence hearing, which was 1 June 2011, the applicant had served 213 days in custody.  But that could not be declared as pre-sentence custody because he had also been there for a breach of probation.  The prosecutor submitted that this period of custody could be brought into account “by reducing the amount of time spent in custody before being released on parole”.  She said “so if your Honour was minded to, say, impose two years and release on parole after a third then he would be spending eight months in custody and then your Honour can deduct the seven months off the pre-sentence custody and so forth”.

His Honour saw fit to instead make orders for suspended sentences.  After imposing the various head sentences, he said:

“I note that you have been in prison for what is almost seven months, and because of that I will make an order that the sentences of imprisonment be suspended at a rather earlier period than I would otherwise.  I will suspend all of those sentences after you have served three months’ imprisonment, and the operational period will be a period of three years.”

The result was that in relation to the two year sentence for wounding, the applicant was worse off than had he been sentenced according to the prosecutor’s submission.  She had submitted, as does the prosecution here, that the appropriate range for the offence was “18 months to three years, with release on parole after serving a third of the wounding offence”.  The effect of this sentence was that the applicant would effectively serve some ten months.  The prosecution argues here that “effectively his Honour started at 2½ years” as the head sentence.  But that does not at all appear from his reasons.  Having decided that two years was the appropriate head sentence, then in all the circumstances the period in custody ought not to have exceeded eight months. 

That his Honour was mistaken as to the impact of his orders further appears from a consideration of the other sentences.  He suspended all of the sentences after three months.  But some of them were head sentences of but three months so that involved no suspension of them at all.  And having regard to the seven months which effectively have been served, the outcome for the head sentences of six to 12 months was distorted.

In the circumstances, this Court should re-sentence the applicant.  It is necessary to reduce the head sentence of the offence of wounding because if he breached his parole and was required to serve the full term of this sentence, he would not have credit for the seven months’ pre-sentence custody.  For that purpose, and without suggesting that it would otherwise not have been an appropriate head sentence, I would reduce the sentence for the offence of wounding to one of 17 months’ imprisonment.

In his case, it is preferable to have him paroled rather than under suspended sentences.  I would fix the date upon which he is to be released on parole as today, because he has effectively served more than 8½ months.  Accordingly, I would grant leave to appeal and set aside the orders made for the offence of unlawful wounding and for the suspension of each sentence.  I would order that he be sentenced on the count of unlawful wounding to 17 months’ imprisonment.  I would order that the applicant be released on parole today.

MUIR JA:  I agree.

DALTON J:  I agree.

MUIR JA:  The orders will be as proposed by Justice McMurdo.

Now, Mr Noble, it is a requirement of the Penalties & Sentences Act that you be informed that you must report to a probation and parole office and obtain a copy of the order in this matter between 9 am and 5 pm either today or next Monday, the 25th of July.  Now do you follow that?

APPLICANT:  Yeah.

MUIR JA:  Now, if you fail to comply with that requirement, you will be unlawfully at large for the purposes of the Corrective Services Act 2006, that is, you will be committing a breach of the law if you fail to report and obtain a copy of the order. Do you follow that?

APPLICANT:  Yes.

MUIR JA:  It’s very important, then, that you make sure that you report to a probation and parole office.  Is it necessary, Mr Kinsella, for me to say where that is?  I assume it’s in Townsville.

MR KINSELLA:  Your Honour, excuse me for one moment.

DALTON J:  Section 93, I think, Mr Kinsella.

P D McMURDO J:  And perhaps also 160G.

MR KINSELLA:  I must apologise to the Court.  I don't have a copy of the Corrective Services Act.  From recollection - unfortunately, I cannot assist the Court, and I do apologise for that.  Perhaps out of an abundance of caution, the order could include – I believe he is currently in Townsville.

MUIR JA:  Yes.  And the place at which you must report is Townsville.  Do you follow that?

APPLICANT:  Yeah.  Can I say something, please?

MUIR JA:  Yes.

APPLICANT:  I want to go to, like, Palm, I’ve got football on there, football, on Saturdays.

MUIR JA:  I’m sorry, I’m having trouble following you, Mr Noble.  Can you take that a little more slowly?

APPLICANT:  Yes, that’s all right.  I want to go to Palm because I play football there - every Sunday.

MUIR JA:  I see.  Now - but the reporting requirement is just an initial one, you report in Townsville and then the probation and parole officers will discuss with you various matters relating to your parole and I think you‑‑‑‑‑

APPLICANT:  Yes.

MUIR JA:  ‑‑‑‑‑can tell them these matters, and I think you’ll find that your freedom of movement to the extent of being able to play football is not going to be restricted.

APPLICANT:  Yeah.

DALTON J:  Well, not by your probation order anyway, Mr Noble, but it might be by the conditions of your domestic violence order.  Do you recall that?

APPLICANT:  Yeah.

DALTON J:  You’d better make certain that that allows you to go to Palm, because I have the feeling that it doesn’t, so you’d better‑‑‑‑‑

APPLICANT:  Yeah.

DALTON J: ‑‑‑‑‑better make certain about that.

MUIR JA:  Now, then, Mr Noble, you, under your parole order, you must not commit another offence, do you understand that, during the term of the order?

APPLICANT:  Yes, your Honour.

MUIR JA:  And you must report as I indicated.  You will receive visits from an authorised Corrective Services officer as directed by the officer.

APPLICANT:  Mmm.

MUIR JA:  You must take part in your counselling and satisfactorily attend programs as directed by an authorised Corrective Services officer during the term of the order.  Do you follow that?

APPLICANT:  Yeah.

MUIR JA:  You must notify an authorised Corrective Services officer of every change in your place of residence or employment within two business days after the change happens.

You must not leave or stay out of Queensland without permission of an authorised Corrective Services Officer and you must comply with every reasonable direction of an authorised Corrective Services officer.

So if you fail to do that, then the order may be revoked and you then may be dealt with further for the offences you've committed.  Do you appreciate that?

APPLICANT:  Yeah.

MUIR JA:  Now, Mr Kinsella, is there anything else?

MR KINSELLA:  No.  Thank you, your Honour.

MUIR JA:  Yes.  Well, Mr Noble, you understand now, I take it, that the Court has ordered that you be released on parole today?

APPLICANT:  Yeah.

MUIR JA:  All right.  And of course, you will remember, won’t you, your necessity‑‑‑‑‑

APPLICANT:  Yeah.

MUIR JA:  ‑‑‑‑‑to report in Townsville either today or on Monday.

APPLICANT:  Yeah.

MUIR JA:  Thank you.