R v Smith

[1999] QCA 250

IN THE COURT OF APPEAL	[1999] QCA 250
SUPREME COURT OF QUEENSLAND

C.A. No. 153 of 1999

Brisbane

[R v. Smith ]

THE QUEEN

v.

ALLEN CHARLES SMITH

(Applicant) Appellant

McMurdo P
Pincus JA

Thomas JA

Judgment delivered 7 July 1999
Further Order delivered 17 August 1999
Further Order of the Court

IT IS ORDERED THAT THE ORDER MADE ON THIS APPLICATION ON 7 JULY 1999 DOES NOT AFFECT THE DECLARATION MADE BY THE LEARNED SENTENCING JUDGE WITH RESPECT TO 65 DAYS PRE-SENTENCE CUSTODY WHICH DECLARATION STILL SUBSISTS

CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS - application for
leave to appeal against sentence disposed of on earlier date - status of declaration made by primary judge with respect to pre-sentence custody - Department of Corrective Services bound by such declarations whether or not it agrees with them
Counsel:	Mr M Shanahan for the applicant Mr P Rutledge for the respondent
Solicitors:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	7 July 1999

REASONS FOR FURTHER ORDER - THE COURT

Judgment delivered 7 July 1999
Further Order delivered 17 August 1999

1. This application for leave to appeal was disposed of on 7 July 1999. The registrar has since received from the Woodford Correctional Centre a communication suggesting that there is doubt about the status of a declaration made by the primary judge with respect to pre-sentence custody; that declaration is not mentioned in the order which was made in this Court. However, it is plain that the intention was that the declaration should stand.

2. The communication also suggests that the declaration was wrongly made by the sentencing judge. However, there was no appeal by the Attorney-General, nor did counsel for the respondent before us suggest that the declaration was wrongly made. Of course the Department is bound by such declarations whether or not it agrees with them.

3 To clarify the position, we make the following order:
It is ordered that the order made on this application on 7 July 1999
does not affect the declaration made by the learned sentencing judge
with respect to 65 days pre-sentence custody which declaration still
subsists.