R v Smithers - [2006] QSC 396

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smithers [2006] QSC 396

PARTIES:

THE QUEEN
v
ANDREW FREDERICK SMITHERS

FILE NO

559 of 2006

DIVISION:

Trial Division

PROCEEDING:

Reasons for reserved issue on sentence

DELIVERED ON:

21 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

15 December 2006

JUDGE:

Mackenzie J

ORDER:

It is ordered that the time during which the prisoner was held in custody from 17 March 2005 to 18 August 2006, being 519 days, be taken into account as time already served pursuant to s 159A of the Penalties and Sentences Act1992.

CATCHWORDS:

CRIMIMAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – allowance for time spent in custody – extension of period before eligible for release after two convictions for murder.

Corrective Services Act 2000 (Qld) s 135
Criminal Code Act 1899 (Qld) s 305(2)
Penalties & Sentences Act 1992 (Qld) s 159A

R v Blake (1995) 2 Qd R 167
R v Fox [1998] QCA 121
R v Holton [1996] QCA
R v Jones [1997] QCA 132
R v Skedgwell (1999) 2 Qd R 97

COUNSEL:

L Clare SC, Director of Public Prosecutions
T Ryan for the prisoner

SOLICITORS:

Director of Public Prosecutions (Queensland)
Legal Aid Office (Queensland) for prisoner

MACKENZIE J: These are the reasons referred to at the conclusion of my sentencing remarks of 15 December 2006. They concern time to be taken into account as time already served and other related issues. By consent of the parties, the time determined is to form part of the order on sentence. When the matter was before me on 15 December 2006, I sentenced the prisoner to life imprisonment for two murders with eligibility to apply for release after 25 years, and to a concurrent sentence of 5 years imprisonment for doing grievous bodily harm on a separate and unrelated occasion.

Section 159A(1) of the Penalties & Sentences Act 1992, (formerly s 161), provides that any time that the offender was held in custody in relation to the offence and for no other reason must be taken to be time already served under the sentence, unless the sentencing court otherwise orders. Despite the fact that the penalty for murder is life imprisonment which cannot be mitigated or varied, an order may be made under s 159A in respect of a person sentenced to life imprisonment (R v Blake (1995) 2 Qd R 167). I am satisfied that there is no reason to deprive the prisoner of the benefit of a declaration in respect of time for which he was held in custody for no other reason than the murder charges.

At the time he committed the murders, he was on bail for the offence of doing grievous bodily harm, committed on 30 May 2004. However, according to the presentence custody certificate, his bail was not revoked on this charge until 18 August 2006. It is the period of custody since bail was revoked on that charge that is in contention.

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 Smithers

Details

AGLC: R v Smithers [2006] QSC 396
Case: [2006] QSC 396
Decision Date: 21 December 2006

CaseChat Overview and Summary

The case before the court involved the defendant, Smithers, who had been convicted of two counts of murder. Smithers had been held in custody from 17 March 2005 until 18 August 2006, prior to his conviction. The central issue in this case was whether the time Smithers spent in custody prior to his conviction should be considered as time already served, pursuant to section 159A of the Penalties and Sentences Act 1992. The court was required to determine if this period should be taken into account in calculating Smithers' eligibility for release.

The court examined the relevant provisions of the Penalties and Sentences Act 1992, specifically section 159A, which provides for the allowance of time spent in custody prior to conviction when calculating the period of imprisonment. The court considered whether the period in question should be included as time already served. The court noted that Smithers had been held in custody for a total of 519 days before his conviction, and that this period was directly relevant to the calculation of his sentence. The court held that the time spent in custody prior to conviction should indeed be taken into account under section 159A of the Act.

In light of the above, the court ordered that the 519 days during which Smithers was held in custody from 17 March 2005 to 18 August 2006 be recognised as time already served. This ruling ensures that Smithers' sentence calculation appropriately reflects the period he spent in custody prior to his conviction. The court's decision was based on the statutory provision and aimed to provide a fair and just outcome in accordance with the law.

Orders

Orders of the court

It is ordered that the time during which the prisoner was held in custody from 17 March 2005 to 18 August 2006, being 519 days, be taken into account as time already served pursuant to s 159A of the Penalties and Sentences Act 1992.

Background

Background to the litigation

Full text does not contain this section.

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 Smithers [2006] QSC 396
PARTIES:	THE QUEEN v ANDREW FREDERICK SMITHERS
FILE NO	559 of 2006
DIVISION:	Trial Division
PROCEEDING:	Reasons for reserved issue on sentence
DELIVERED ON:	21 December 2006
DELIVERED AT:	Brisbane
HEARING DATE:	15 December 2006
JUDGE:	Mackenzie J
ORDER:	It is ordered that the time during which the prisoner was held in custody from 17 March 2005 to 18 August 2006, being 519 days, be taken into account as time already served pursuant to s 159A of the Penalties and Sentences Act1992.
CATCHWORDS:	CRIMIMAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – allowance for time spent in custody – extension of period before eligible for release after two convictions for murder. Corrective Services Act 2000 (Qld) s 135 Criminal Code Act 1899 (Qld) s 305(2) Penalties & Sentences Act 1992 (Qld) s 159A R v Blake (1995) 2 Qd R 167 R v Fox [1998] QCA 121 R v Holton [1996] QCA R v Jones [1997] QCA 132 R v Skedgwell (1999) 2 Qd R 97
COUNSEL:	L Clare SC, Director of Public Prosecutions T Ryan for the prisoner
SOLICITORS:	Director of Public Prosecutions (Queensland) Legal Aid Office (Queensland) for prisoner