R v Smith - [2013] QDC 69

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Smith [2013] QDC 69

PARTIES:

R

v

SMITH, Russell Ian

(applicant)

FILE NO/S:

DC No 677 of 2012

DIVISION:

Criminal

PROCEEDING:

Application for Reopening of sentence (Criminal)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

19 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

12 April 2013

JUDGE:

Devereaux SC DCJ

ORDER:

1. The application is dismissed.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – where applicant sentenced for Commonwealth offences to 5 years’ imprisonment with a non-parole period of 20 months – where it was asserted that the applicant had a statutory expectation of parole at or within 30 days before the end of the non-parole period –– where Crimes Legislation (Powers and Offences) Act 2012 amended s 19AL Crimes Act 1914 (Cth) - where the amended position was that the applicant had a statutory expectation only that a decision would be made – where the amended position was not stated during sentencing - where application for leave to reopen sentence pursuant to s 188(1)(c) Penalties and Sentences Act 1992 (Qld) – whether there was a clear factual error of substance

Crimes Act 1914 (Cth), s 19AL

Crimes Legislation (Powers and Offences) Act 2012

Penalties and Sentences Act1992 (Qld), s 188

R v Cassar,ex parte Attorney-General [2002] 1 Qd R 386

R v Daly [2004] QCA 385

R v MacKenzie [2002] 1 Qd R 410

R v Ronkovich [2007] QCA 193

The Queen v Weiss [2001] QCA 373

COUNSEL:

C Heaton SC for the applicant

J Hanna for the respondent

SOLICITORS:

Robertson O’Gorman for the applicant

Director of Public Prosecutions (Commonwealth) for the respondent

On 27 July 2012, I sentenced the applicant in respect of six offences. For two of them, which were Commonwealth offences, I sentenced the applicant to 5 years’ imprisonment with a non-parole period of 20 months.

The applicant applies for leave to bring an application to re-open the sentence under the Penalties and Sentences Act (Qld) s. 188. In particular, the applicant submits the sentencing discretion proceeded on a ‘clear factual error of substance’ within s. 188(1)(c). Subs. 188(1) provides:

‘(1) If a court has in, or in connection with, a criminal proceeding,
including a proceeding on appeal—
(a) imposed a sentence that is not in accordance with the
law; or
(b) failed to impose a sentence that the court legally should
have imposed; or
(c) imposed a sentence decided on a clear factual error of
substance; or
(d) failed to fix a date for the offender to be released on
parole as required under part 9, division 3;

the court, whether or not differently constituted, may reopen
the proceeding.’

An application under s. 188 must be filed within 28 days of the decision.[1] I would be inclined to grant leave to make the application if it had prospects of success.
[1] Penalties and Sentences Act 1992 subs. 188(5)

At the sentencing hearing there was some discussion about whether my fixing a non-parole period would give the applicant…

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] QDC 69
Case: [2013] QDC 69
Decision Date: 19 April 2013

CaseChat Overview and Summary

In the case of R v Smith, the applicant was sentenced for Commonwealth offences to five years’ imprisonment with a non-parole period of 20 months. The applicant subsequently sought leave to reopen the sentence under section 188(1)(c) of the Penalties and Sentences Act 1992 (Qld), asserting that he had a statutory expectation of parole at or within 30 days before the end of the non-parole period. This expectation was based on the Crimes Legislation (Powers and Offences) Act 2012, which amended section 19AL of the Crimes Act 1914 (Cth). The applicant argued that this expectation was not accurately stated during the sentencing and thus constituted a clear factual error of substance.

The court was tasked with determining whether the applicant’s assertion constituted a clear factual error of substance that warranted the reopening of his sentence. The central legal issue was whether the statutory expectation of parole was correctly communicated during the sentencing process. Given that the statutory expectation had changed due to the legislative amendment, the court had to assess if this change had been adequately conveyed to the applicant at the time of sentencing. If it had not, this could potentially be considered a clear factual error warranting a reopening of the sentence.

The court concluded that there was no clear factual error of substance that warranted reopening the sentence. It held that the statutory expectation of parole had indeed changed due to the legislative amendment, but there was no obligation for the sentencing court to inform the applicant of this change. The applicant had not demonstrated that he was unaware of the statutory expectation at the time of sentencing. Therefore, the application for leave to reopen the sentence was dismissed. The court found that the applicant’s understanding or misunderstanding of the statutory changes did not constitute a clear factual error that required the reopening of his sentence.

Orders

Orders of the court

1. The application is dismissed.

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] QDC 69
PARTIES:	R v SMITH, Russell Ian (applicant)
FILE NO/S:	DC No 677 of 2012
DIVISION:	Criminal
PROCEEDING:	Application for Reopening of sentence (Criminal)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	19 April 2013
DELIVERED AT:	Brisbane
HEARING DATE:	12 April 2013
JUDGE:	Devereaux SC DCJ
ORDER:	1. The application is dismissed.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – where applicant sentenced for Commonwealth offences to 5 years’ imprisonment with a non-parole period of 20 months – where it was asserted that the applicant had a statutory expectation of parole at or within 30 days before the end of the non-parole period –– where Crimes Legislation (Powers and Offences) Act 2012 amended s 19AL Crimes Act 1914 (Cth) - where the amended position was that the applicant had a statutory expectation only that a decision would be made – where the amended position was not stated during sentencing - where application for leave to reopen sentence pursuant to s 188(1)(c) Penalties and Sentences Act 1992 (Qld) – whether there was a clear factual error of substance Crimes Act 1914 (Cth), s 19AL Crimes Legislation (Powers and Offences) Act 2012 Penalties and Sentences Act1992 (Qld), s 188 R v Cassar,ex parte Attorney-General [2002] 1 Qd R 386 R v Daly [2004] QCA 385 R v MacKenzie [2002] 1 Qd R 410 R v Ronkovich [2007] QCA 193 The Queen v Weiss [2001] QCA 373
COUNSEL:	C Heaton SC for the applicant J Hanna for the respondent
SOLICITORS:	Robertson O’Gorman for the applicant Director of Public Prosecutions (Commonwealth) for the respondent