R v. Riddler

[2010] QCA 202

[2010] QCA 202

COURT OF APPEAL

MCMURDO P
MUIR JA
APPLEGARTH J

CA No 89 of 1999

THE QUEEN

v

ROBERT LESLIE RIDDLER  Appellant

BRISBANE

DATE 05/08/2010

JUDGMENT

THE PRESIDENT:  Yes, would you announce your appearances, please.

MR MALCOLMSON:  Yes, good morning, your Honours, my name is Malcolmson, M-A-L-C-O-L-M-S-O-N, initials S D, I appear instructed by the Prisoner's Legal Service for the applicant in this matter.

THE PRESIDENT:  Thank you, Mr Malcolmson.

MR COPLEY:  If the Court pleases, I appear for the respondent, C-O-P-L-E-Y, initials M J, instructed by the DPP of Queensland.

...

THE PRESIDENT:  The applicant, Robert Leslie Riddler, applies for the re-opening of a sentence confirmed in this Court on 15 October 1999 when this Court refused his application for leave to appeal against his sentence: See R v Riddler [1999] QCA 435.

Mr Riddler was originally convicted in the District Court at Southport on 22 March 1999 after pleading guilty to a number of offences, the most serious of which was rape.  He was sentenced for that offence to 12 years' imprisonment.
It seems that when he instituted his appeal to this Court he failed to elect to be treated as a prisoner serving a term of imprisonment pending the determination of the appeal under s75(3)(a) Corrective Services Act 1988 (Qld) (Repealed). He ticked the wrong box in a form given to him whilst in prison.

The effect of the law in forced at that time was, that in the absence of a direction given by the Court under section 671G(3) Criminal Code (Repealed),  the time that Mr Riddler was in custody between 20 April 1999 and 2 June 1999, a period of 42 days could not be counted as part of his term of imprisonment because of s 75 Corrective Services Act (Repealed).  When the Corrective Services authorities became aware of Mr Riddler's election, they informed him of its consequences and he immediately signed another form, ensuring that the subsequent time in custody pending the determination of his appeal on 15 October 1999 was taken into account as part of his sentence.

This Court was not informed about this difficulty when it heard Mr Riddler's appeal on 15 October 1999.  Mr Riddler was on that occasion self-represented.  Had this Court known of it, it would have acted in the interests of justice and made an order with respect to those 42 days.

This Court has made orders of the kind now sought by Mr Riddler in like circumstances: See R v Lowe [2003] QCA 306 and R v Shield [2006] QCA 255. In my view, the interests of justice clearly warrant this Court taking a similar course in this case.

Mr Copley for the respondent, in his customary fair and balanced way, does not oppose that course but he points out that s 671G(2) Criminal Code now provides:  "The period the appellant is in custody pending the determination of the appeal counts as part of any term of imprisonment under the appellant's sentence."  He submits, that as a procedural provision,
s 671G(2) applies retrospectively and the Corrective Services authorities should, in the current case, treat the 42 days as time served under the sentence.
But we have been informed that the authorities have not taken this view of s 671G(2) and Mr Riddler is currently serving that 42 days. That is why the Court listed the matter for urgent hearing on 5 August 2010.

Whether or not Mr Copley's submission is correct, there can be no doubt that the interests of justice warrant the Court making the following order:

The 42 days during which the applicant, Robert Leslie Riddler was in custody, between 20 April 1999 and 2 June 1999, should count as time served under his sentence of imprisonment of 12 years, confirmed by this Court on 15 October 1999, and which he was originally required to serve on 22 March 1999.

MUIR JA:  I agree.

APPLEGARTH J:  I agree.

THE PRESIDENT:  That is the order of the Court.