R v Stephenson

[1999] QCA 68

99.68

COURT OF APPEAL

McMURDO P
PINCUS JA
WHITE J

CA No 25 of 1999

THE QUEEN

v.

GLENN THOMAS STEPHENSON  Applicant

BRISBANE

..DATE 15/03/99

JUDGMENT

PINCUS JA:  This application illustrates, with respect, the advantage of following the practice of specifying a date of eligibility for parole rather than a method of working it out.  Experience shows that unless a specific date is set there may be problems in determining eligibility.

The applicant, Mr Stephenson, says correctly that he has been advised of quite different dates of eligibility, and the purpose of his application for an extension of time to appeal against sentence is, it appears, to clarify the matter.  The applicant was sentenced to four years imprisonment on 30 November 1989 and was released on parole after two years.  While on parole he committed further offences, and for these he was initially sentenced in the District Court on 18 June 1993 and that sentence was altered by this Court by orders made 16 December 1993. 

This Court's orders were as follows:

In Appeal No 219 of 1993 application for leave to appeal against sentence granted, appeal allowed, set aside the sentence imposed below.  In lieu the applicant is sentenced to 10 years imprisonment cumulative upon the sentence currently being served with a recommendation that the applicant be eligible for parole after serving six years of the total period of imprisonment that he must serve under the sentence imposed by this Court and the sentence currently being served.  In each appeal the Court states that the applicant was held in pre-sentence custody from 8 March 1993 to the date of the sentence now imposed by this Court, and declares that period of nine months and eight days to be imprisonment already served under that sentence.

It will be noted that the applicant was held in pre-sentence custody from 8 March 1993 and that the period of nine months and eight days from 8 March 1993 to 16 December 1993, when his sentence was finally fixed on appeal, was declared to be imprisonment already served.  His date of eligibility for parole was after serving six years of the total period of imprisonment, that is six years of the 14 years.  He had served two years initially and so had another four years to serve from 8 March 1993 before becoming eligible for parole.  The result was that he became eligible for parole on 8 March 1997.

It is unfortunate that the applicant has been given different dates of eligibility, but it has to be conceded that the relevant provisions of the Penalties and Sentences Act 1992 may sometimes be thought capable of different constructions. Here, however, the order made in the Court of Appeal was clear, that the eligibility for parole was after serving six years of the total period of imprisonment. Since he served two years of that initially, he plainly had to serve another four years and that is why his parole date was four years from 8 March 1993, that is, 8 March 1997.

In my view, it should be declared that the applicant became eligible for release on parole on 8 March 1997 in consequence of the order of this Court made on 16 December 1993.  I would otherwise dismiss the application.

THE PRESIDENT:  I agree.

WHITE J:  I agree also that the declaration ought to be made and the application dismissed for the reasons given by
Mr Justice Pincus.

THE PRESIDENT:  The order is that this Court declares that the applicant became eligible for release on parole on 8 March 1997.  The application is otherwise dismissed.

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