R v Stallan - [2022] QCA 40

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stallan [2022] QCA 40

PARTIES:

R
v
STALLAN, Jason Scott
(applicant)

FILE NO/S:

CA No 161 of 2021
SC No 405 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 10 June 2021 (Martin J)

DELIVERED ON:

29 March 2022

DELIVERED AT:

Brisbane

HEARING DATE:

5 November 2021

JUDGES:

McMurdo and Mullins JJA and Boddice J

ORDERS:

1.   Grant leave to appeal.

2.   Allow the appeal.

3.   Vary the orders made in the Trial Division on 10 June 2021 by:

a.   varying the term of imprisonment of four years, imposed on count 1 on the charge by the indictment, to a term of three years and eight months’ imprisonment;

b.   varying the applicant’s parole eligibility date from 6 July 2023 to 6 May 2023;

c.   declaring that the applicant was held for a total of 377 days of pre-sentence custody between 29 May 2020 and 10 June 2021 and that none of that time is taken to be imprisonment already served under the sentence.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to trafficking in methylamphetamine and was sentenced to four years’ imprisonment – where the sentence was ordered to be served cumulatively upon a sentence of five and a half years’ imprisonment for a previous offence of trafficking in the same drug – where according to a pre-sentence custody certificate, the full time discharge date under that previous sentence was 6 July 2023 – where that date was fixed by the judge as the new parole eligibility date – where the judge was not assisted with the correct date for the expiry of the five and a half year term, which is 15 November 2023 – where the applicant’s period of imprisonment will be at least four months longer than the judge intended – whether leave to appeal should be granted

Corrective Services Act 2006 (Qld), s 209, s 211
Penalties and Sentences Act 1992 (Qld), s 156A, s 160F(2)

R v Braeckmans[2022] QCA 25, cited
R v Ianculescu [2000] 2 Qd R 521; [1999] QCA 439, cited
R v Ungvari[2010] QCA 134, cited

COUNSEL:

R M O’Gorman for the applicant
D Nardone for the respondent

SOLICITORS:

Wallace O'Hagan Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO JA: This is an application for leave to appeal against a sentence of four years’ imprisonment, which was imposed in the Trial Division for an offence of trafficking in methylamphetamine. The sentence was ordered to be served cumulatively upon a sentence of five and a half years’ imprisonment for a previous offence of trafficking in the same drug. According to a pre-sentence custody certificate, the full time discharge date under that previous sentence was 6 July 2023. That date was fixed by the judge as the new parole eligibility date.
The application…

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 Stallan

Details

AGLC: R v Stallan [2022] QCA 40
Case: [2022] QCA 40
Decision Date: 29 March 2022

CaseChat Overview and Summary

The case of R v Stallan involves an appeal against the sentence imposed on the applicant, who had pleaded guilty to trafficking in methylamphetamine. The applicant had already been serving a sentence of five and a half years for a previous offence of trafficking in the same drug. Upon his conviction for the current offence, he was sentenced to an additional four years' imprisonment to be served cumulatively with his existing sentence. The applicant argued that there had been an error in the calculation of his parole eligibility date, which was set by the judge as 6 July 2023, rather than the correct date of 15 November 2023, resulting in an unintended extension of his period of imprisonment. The applicant sought leave to appeal against the sentence on the grounds of the incorrect calculation of the parole eligibility date.

The court was required to determine whether the error in the calculation of the parole eligibility date constituted grounds for interference with the sentence. The appeal hinged on whether the discrepancy between the intended and actual parole eligibility date was significant enough to warrant the grant of leave to appeal and the subsequent variation of the sentence. The court also had to consider whether the error materially affected the overall sentence and whether the applicant’s period of imprisonment was, as a result, longer than intended.

The court granted leave to appeal and allowed the appeal, finding that the error in the calculation of the parole eligibility date was significant and materially affected the sentence. The court varied the term of imprisonment to three years and eight months, reflecting the correct parole eligibility date of 6 May 2023. The court also clarified that the applicant’s period of pre-sentence custody should not be counted as time already served under the sentence. The final orders included reducing the term of imprisonment and setting the correct parole eligibility date, ensuring that the applicant's period of imprisonment aligned with the judge's intended sentence.

Orders

Orders of the court

1. Grant leave to appeal.

2. Allow the appeal.

3. Vary the orders made in the Trial Division on 10 June 2021 by:

a. varying the term of imprisonment of four years, imposed on count 1 on the charge by the indictment, to a term of three years and eight months’ imprisonment;

b. varying the applicant’s parole eligibility date from 6 July 2023 to 6 May 2023;

c. declaring that the applicant was held for a total of 377 days of pre-sentence custody between 29 May 2020 and 10 June 2021 and that none of that time is taken to be imprisonment already served under the sentence.

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 Stallan [2022] QCA 40
PARTIES:	R v STALLAN, Jason Scott (applicant)
FILE NO/S:	CA No 161 of 2021 SC No 405 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 10 June 2021 (Martin J)
DELIVERED ON:	29 March 2022
DELIVERED AT:	Brisbane
HEARING DATE:	5 November 2021
JUDGES:	McMurdo and Mullins JJA and Boddice J
ORDERS:	1. Grant leave to appeal. 2. Allow the appeal. 3. Vary the orders made in the Trial Division on 10 June 2021 by: a. varying the term of imprisonment of four years, imposed on count 1 on the charge by the indictment, to a term of three years and eight months’ imprisonment; b. varying the applicant’s parole eligibility date from 6 July 2023 to 6 May 2023; c. declaring that the applicant was held for a total of 377 days of pre-sentence custody between 29 May 2020 and 10 June 2021 and that none of that time is taken to be imprisonment already served under the sentence.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to trafficking in methylamphetamine and was sentenced to four years’ imprisonment – where the sentence was ordered to be served cumulatively upon a sentence of five and a half years’ imprisonment for a previous offence of trafficking in the same drug – where according to a pre-sentence custody certificate, the full time discharge date under that previous sentence was 6 July 2023 – where that date was fixed by the judge as the new parole eligibility date – where the judge was not assisted with the correct date for the expiry of the five and a half year term, which is 15 November 2023 – where the applicant’s period of imprisonment will be at least four months longer than the judge intended – whether leave to appeal should be granted Corrective Services Act 2006 (Qld), s 209, s 211 Penalties and Sentences Act 1992 (Qld), s 156A, s 160F(2) R v Braeckmans[2022] QCA 25, cited R v Ianculescu [2000] 2 Qd R 521; [1999] QCA 439, cited R v Ungvari[2010] QCA 134, cited
COUNSEL:	R M O’Gorman for the applicant D Nardone for the respondent
SOLICITORS:	Wallace O'Hagan Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent