R v Smith - [2013] QCA 397

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smith [2013] QCA 397

PARTIES:

R
v
SMITH, Brogen Grace
(applicant)

FILE NO/S:

CA No 257 of 2013
DC No 1232 of 2013
DC No 1329 of 2013
DC No 1351 of 2013
DC No 1426 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

20 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

5 December 2013

JUDGES:

Muir and Morrison JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – OTHER MATTERS – where the applicant was sentenced in July 2012 to a period of imprisonment – where in September 2013 the primary judge sentenced the applicant to a period of imprisonment to start at the end of the period of imprisonment imposed in July 2012 – where the primary judge imposed a parole eligibility date – where s 160B of the Penalties and Sentences Act 1992 (Qld) requires the court to fix a parole eligibility date where the offender has a court ordered parole order cancelled under s 209 of the Corrective Services Act 2006 (Qld) during the offender’s period of imprisonment – whether the applicant’s parole order, in relation to the July 2012 sentence, was cancelled under s 209 of the Corrective Services Act – whether the offender’s two terms of imprisonment constituted a period of imprisonment under s 4 the Penalties and Sentences Act – whether the primary judge incorrectly applied s 160B(2) of the Penalties and Sentences Act by imposing a parole eligibility date instead of a parole release date

Corrective Services Act 2006 (Qld), s 4, s 205, s 209, s 209(1), s 209(2), s 209(3), s 210, s 210(3), s 211, s 211(1)(c), s 211(1)(f), s 211(2), s 211(2)(c), s 214, s 215, Sch 4
Penalties and Sentences Act 1992 (Qld), s 4, s 160A, s 160B, s 160B(2)

COUNSEL:

F Richards for the applicant
P J McCarthy for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: I agree that the application for leave to appeal should be refused for the reasons given by Morrison JA.

MORRISON JA: This is an application for leave to appeal against sentence. The contention is that the primary judge incorrectly applied s 160B(2) of the Penalties and Sentences Act 1992 (Qld) (“PSA”), in that he imposed a parole eligibility date instead of a parole release date.

Since that is the sole ground of the application for leave to appeal, there is no necessity to review the circumstances of the offence.

Essential chronology

On 24 July 2012 the applicant was sentenced to 15 months imprisonment with 160 days of pre-sentence custody being declared as time served. The applicant was immediately released on parole for an expected…

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 Smith

Details

AGLC: R v Smith [2013] QCA 397
Case: [2013] QCA 397
Decision Date: 20 December 2013

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Smith, the appellant contested the sentence imposed by the District Court of Queensland in 2013. The appellant had originally been sentenced to a period of imprisonment in July 2012. In September 2013, the primary judge, in a subsequent proceeding, sentenced the appellant to an additional term of imprisonment to be served consecutively. The primary judge also imposed a parole eligibility date. The appellant contested the legality of this additional sentencing and the imposition of the parole eligibility date, asserting that the primary judge had misapplied statutory provisions in determining the parole eligibility date.

The legal issues central to the appeal included whether the appellant's parole order, related to the July 2012 sentence, had indeed been cancelled under section 209 of the Corrective Services Act 2006 (Qld). Additionally, the court had to determine if the two terms of imprisonment constituted a single period of imprisonment under section 4 of the Penalties and Sentences Act 1992 (Qld). The appellant argued that the primary judge should have applied section 160B(2) of the Penalties and Sentences Act, which mandates a parole release date instead of a parole eligibility date.

The court held that the appellant's parole order had been cancelled, thereby triggering the requirement under section 160B of the Penalties and Sentences Act to set a parole eligibility date. The court clarified that the two terms of imprisonment constituted a single period of imprisonment for the purposes of the Act. It was determined that the primary judge had correctly applied the relevant statutory provisions. Consequently, the court rejected the appellant's contention that the primary judge had misapplied the law by imposing a parole eligibility date instead of a parole release date. The application for leave to appeal against sentence was therefore refused.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

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 Smith [2013] QCA 397
PARTIES:	R v SMITH, Brogen Grace (applicant)
FILE NO/S:	CA No 257 of 2013 DC No 1232 of 2013 DC No 1329 of 2013 DC No 1351 of 2013 DC No 1426 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	20 December 2013
DELIVERED AT:	Brisbane
HEARING DATE:	5 December 2013
JUDGES:	Muir and Morrison JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – OTHER MATTERS – where the applicant was sentenced in July 2012 to a period of imprisonment – where in September 2013 the primary judge sentenced the applicant to a period of imprisonment to start at the end of the period of imprisonment imposed in July 2012 – where the primary judge imposed a parole eligibility date – where s 160B of the Penalties and Sentences Act 1992 (Qld) requires the court to fix a parole eligibility date where the offender has a court ordered parole order cancelled under s 209 of the Corrective Services Act 2006 (Qld) during the offender’s period of imprisonment – whether the applicant’s parole order, in relation to the July 2012 sentence, was cancelled under s 209 of the Corrective Services Act – whether the offender’s two terms of imprisonment constituted a period of imprisonment under s 4 the Penalties and Sentences Act – whether the primary judge incorrectly applied s 160B(2) of the Penalties and Sentences Act by imposing a parole eligibility date instead of a parole release date Corrective Services Act 2006 (Qld), s 4, s 205, s 209, s 209(1), s 209(2), s 209(3), s 210, s 210(3), s 211, s 211(1)(c), s 211(1)(f), s 211(2), s 211(2)(c), s 214, s 215, Sch 4 Penalties and Sentences Act 1992 (Qld), s 4, s 160A, s 160B, s 160B(2)
COUNSEL:	F Richards for the applicant P J McCarthy for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent