R v Parker - [2002] QCA 403

SUPREME COURT OF QUEENSLAND

CITATION:

R v Parker [2002] QCA 403

PARTIES:

R
v
PARKER, Steven James
(applicant/appellant)

FILE NO/S:

CA No 160 of 2002
DC No 868 of 2002
DC No 1263 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

5 September 2002

JUDGES:

Williams and Jerrard JJA and Atkinson J
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 allowed
2. Appeal allowed in respect of each of the sentences imposed on 7 May 2002, and each sentence varied by deletion of the words “twelve months” and insertion instead of the words “nine months”

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE – where applicant was sentenced to 12 months imprisonment to be served cumulatively on the expiration of his existing sentence – operation of s 152 of the Corrective Services Act 2000 (Qld) – where s 152(2)(a) was applied to the applicant when sentenced thereby setting his release date for his existing sentence at 25 October 2002 – where Queensland Community Corrections Board later applied s 152(2)(c) of the Act to the applicant thereby extending his release date to 14 April 2003 – where s 152(2)(c) was the correct provision which should have been applied by the learned sentencing judge – where the learned sentencing judge was provided with incorrect information which did not accurately reflect the applicant’s situation – where s 152(2)(c) applied to the applicant the moment he pleaded guilty to the commission of an offence while on parole thereby substantially reducing the time regarded as time already served under the sentence as previously calculated under s 152(2)(a) – whether error occurred at time of sentence

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant argued that a significant error, both in fact and law, operated at the time he was sentenced – where applicant did not apply to the Court pursuant to s 188 Penalties and Sentences Act 1992 (Qld) to reopen his sentencing proceeding but chose to apply for leave to appeal against sentence – whether sentence should be considered afresh on its merits rather than applicant having to demonstrate it is manifestly excessive

Corrective Services Act 2000 (Qld), s 75(1)(c), s 150, s 151, s 152
Penalties and Sentences Act 1992 (Qld), s 188

R v Leith [2000] 1 Qd R 660, cited
R v Maniadis [1997] 1 Qd R 593, cited
R v Selle [1998] QCA 291; CA No 205 of 1998, 7 August 1998, referred to

COUNSEL:

The applicant/appellant appeared on his own behalf
PF Rutledge for the respondent

SOLICITORS:

The applicant/appellant…

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 Parker

Details

AGLC: R v Parker [2002] QCA 403
Case: [2002] QCA 403
Decision Date: 4 October 2002

CaseChat Overview and Summary

The case of R v Parker involved the applicant, who was sentenced to a 12-month imprisonment term to be served cumulatively following the expiration of his existing sentence. The dispute centred on the operation of section 152 of the Corrective Services Act 2000 (Qld) and its application to the applicant’s release date. Initially, section 152(2)(a) was applied, setting the release date as 25 October 2002. However, the Queensland Community Corrections Board later applied section 152(2)(c), extending the release date to 14 April 2003. The applicant argued that this change was an error and that the correct provision should have been applied by the sentencing judge. The applicant also contended that a significant error, both factual and legal, occurred at the time of sentencing.

The legal issues that the court needed to address were whether there was an error in the application of section 152 of the Act and if the applicant's sentence should be considered afresh on its merits. The applicant did not seek to reopen the sentencing proceedings under section 188 of the Penalties and Sentences Act 1992 (Qld) but instead applied for leave to appeal against the sentence. The court had to determine if the appeal should be allowed and if the sentence should be varied based on the applicant’s arguments.

The court found that there was indeed an error in the application of section 152 of the Act. The sentencing judge was provided with incorrect information that did not accurately reflect the applicant’s situation. The court concluded that section 152(2)(c) should have been applied, as it substantially reduced the time regarded as time already served under the sentence. Given this error, the court allowed the application for leave to appeal against the sentence. The appeal was subsequently allowed, and the sentence was varied to reduce the 12-month term to nine months, deleting the original wording and inserting the new term instead.

Orders

Orders of the court

1. Application for leave to appeal against sentence allowed

2. Appeal allowed in respect of each of the sentences imposed on 7 May 2002, and each sentence varied by deletion of the words “twelve months” and insertion instead of the words “nine months”

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 Parker [2002] QCA 403
PARTIES:	R v PARKER, Steven James (applicant/appellant)
FILE NO/S:	CA No 160 of 2002 DC No 868 of 2002 DC No 1263 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	4 October 2002
DELIVERED AT:	Brisbane
HEARING DATE:	5 September 2002
JUDGES:	Williams and Jerrard JJA and Atkinson J 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 allowed 2. Appeal allowed in respect of each of the sentences imposed on 7 May 2002, and each sentence varied by deletion of the words “twelve months” and insertion instead of the words “nine months”
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE – where applicant was sentenced to 12 months imprisonment to be served cumulatively on the expiration of his existing sentence – operation of s 152 of the Corrective Services Act 2000 (Qld) – where s 152(2)(a) was applied to the applicant when sentenced thereby setting his release date for his existing sentence at 25 October 2002 – where Queensland Community Corrections Board later applied s 152(2)(c) of the Act to the applicant thereby extending his release date to 14 April 2003 – where s 152(2)(c) was the correct provision which should have been applied by the learned sentencing judge – where the learned sentencing judge was provided with incorrect information which did not accurately reflect the applicant’s situation – where s 152(2)(c) applied to the applicant the moment he pleaded guilty to the commission of an offence while on parole thereby substantially reducing the time regarded as time already served under the sentence as previously calculated under s 152(2)(a) – whether error occurred at time of sentence CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant argued that a significant error, both in fact and law, operated at the time he was sentenced – where applicant did not apply to the Court pursuant to s 188 Penalties and Sentences Act 1992 (Qld) to reopen his sentencing proceeding but chose to apply for leave to appeal against sentence – whether sentence should be considered afresh on its merits rather than applicant having to demonstrate it is manifestly excessive Corrective Services Act 2000 (Qld), s 75(1)(c), s 150, s 151, s 152 Penalties and Sentences Act 1992 (Qld), s 188 R v Leith [2000] 1 Qd R 660, cited R v Maniadis [1997] 1 Qd R 593, cited R v Selle [1998] QCA 291; CA No 205 of 1998, 7 August 1998, referred to
COUNSEL:	The applicant/appellant appeared on his own behalf PF Rutledge for the respondent
SOLICITORS:	The applicant/appellant…