R v Pilkington - [2000] QCA 78

[R v PILKINGTON]
[2000] QCA 78

COURT OF APPEAL

McMURDO P
THOMAS JA
ATKINSON J

CA No 364 of 1999

THE QUEEN

PETER OWEN PILKINGTON Applicant

BRISBANE

..DATE 16/03/2000

ORDER

THE PRESIDENT: I realised after the event that the order made by this Court earlier today was unlawful in that a probation order was imposed during the operational period of suspended sentence. Such an order is prohibited (see Hughes (1999) 1 Qd.R 389, R v. M (1999) QCA442, R v. C G Hughes (2000) QCA 16.)

This case is a good example of a situation where a prohibited combination of sentences would be beneficial both to the offender and to the community and plainly demonstrates the need for legislative intervention to permit such a combination of orders where appropriate.

THE PRESIDENT: This Court has however you would agree,
Mr Byrne, no alternative but to vacate the order made earlier today.

MR BYRNE: I do agree with that, with respect.

THE PRESIDENT: So the orders made earlier today in respect of the offences of supplying a dangerous drug must be vacated and the sentence imposed at first instance of a suspended sentence must remain. This means of course that neither the appellant nor the community can have the benefit of the appellant being subject to a probation order.

To clarify the situation, I would vacate the orders I made earlier today and instead I propose the following orders.

The application for leave to appeal is granted. The appeal against sentence in respect of the breach of suspended sentence only is allowed. That sentence is set aside and instead the appellant is ordered to serve six months of the period of imprisonment imposed and suspended by Forde DCJ. I would declare the appellant has served 107 days from 18 July 1999 to 2 November 1999 as time already served under the sentence. I would direct that under section 671G(3) of the Criminal Code the time during which the appellant was in custody pending this appeal from 2 November 1999 until today shall count as time served under the sentence.

THOMAS JA: I will make a suggestion which I have not spoken about to the other members of the Court. I think that it would be desirable to direct the Registrar to advise the applicant of the amended orders together with a transcript of the reasons just given with notification that the Court will reconvene for further consideration of the matter if the applicant notifies the Registrar of his desire to be heard within seven days of that notification.

ATKINSON J: I agree.

THE PRESIDENT: Yes, I agree with that amendment. The orders will be as I have set out, with the additional order suggested by Justice Thomas.

MR BYRNE: I will undertake to contact the Inala Probation Office in case the applicant turns up there tomorrow.

THOMAS JA: Yes. It seems possible that he either has been released or his release is imminent anyway.

MR BYRNE: That's so, your Honour.

THOMAS…

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 Pilkington

Details

AGLC: R v Pilkington [2000] QCA 78
Case: [2000] QCA 78
Decision Date: 16/03/2000

CaseChat Overview and Summary

In the matter of R v Pilkington, the applicant appealed against the sentences imposed by the Supreme Court. The applicant, Peter Owen Pilkington, pleaded guilty to one count of supplying a dangerous drug, ecstasy, and one count of supplying a dangerous drug, heroin. The Supreme Court Judge sentenced him to 12 months' imprisonment, suspended after four months, with an operational period of 18 months, in addition to sentencing him for breach of a suspended sentence. Pilkington argued that the sentences were manifestly excessive.

The primary legal issue before the Court of Appeal was whether the sentences imposed by the Supreme Court were manifestly excessive and, if so, what alternative sentences would be appropriate. The Court considered the nature of the offences, the applicant's background, and his prospects for rehabilitation.

The Court of Appeal found that the original sentences were manifestly excessive. They acknowledged the applicant's troubled background, including a history of drug-related offences and a heroin addiction. The Court emphasised the applicant's willingness to participate in rehabilitation programs and his desire for rehabilitation. The Court concluded that a sentence requiring the applicant to serve six months of the suspended imprisonment would be more appropriate, given his efforts at rehabilitation and the circumstances of the offences. The Court also proposed a sentence of 18 months' probation with special conditions for the drug offences, including participation in the Fairhaven Drug Rehabilitation Centre. The Court ordered that the applicant report to an authorised Commission officer at Inala within 24 hours of his release from prison and declared that the 107 days from 18 July until 2 November be counted as time already served under the sentence. The Court further directed that the time during which the applicant was in custody from sentence pending this appeal shall count as time served as imprisonment under the sentences.

Orders