R v Stewart - [2021] QSC 187

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stewart [2021] QSC 187

PARTIES:

THE QUEEN

v

STEWART, Kody James

(defendant)

FILE NO/S:
SC No 68 of 2021

SC No 87 of 2021

DIVISION:

Trial

PROCEEDING:

Sentence

ORIGINATING COURT:
Supreme Court of Queensland

DELIVERED EX TEMPORE ON:

23 July 2021

DELIVERED AT:

Cairns

HEARING DATES:

22 July 2021; 23 July 2021

JUDGE:

Henry J

ORDER:

1.   On the sole count on the indictment, possession of dangerous drug with a circumstance of aggravation, 12 months imprisonment;

2.   Summary charge ending 169, unlawful use of motor vehicle, four months imprisonment;

3.   Summary charge ending 941, possession of dangerous drugs, one month imprisonment;

4.   Summary charge ending in 041, obtain property, one month imprisonment;

5.   Summary charge ending 033, possession of billy club, convicted, but not further punished;

6.   Summary charge ending 050, one month imprisonment;

7.   Summary charge ending 050, possession of utensils for use, glass pipe, one month imprisonment;

8.   Summary charge ending 068, possession of property suspected of being acquired for the purpose of committing a drug offence, clipseal bags, one month imprisonment;

9.   Summary charge ending 959, possession of flick knife, one month imprisonment;

10. Summary charge ending in 157, possession of digital scales, one month imprisonment;

11. Summary charge ending 939, holder of C-class licence failing to comply with requirements, convicted, but not further punished;

12. Summary charge ending 267, possession of dangerous drugs, one month imprisonment.

All of those terms of imprisonment are to be served concurrently with each other and with the sentence you are presently serving.

13. In respect of summary charge ending in 882, the evasion offence, I disqualify you from holding or obtaining a drivers licence for two years and sentence you to two months imprisonment, cumulative upon the sentences you are otherwise serving.

I fix your parole eligibility date as being 20 November 2021.

Convictions are recorded.

I declare, pursuant to s 159A(3B) the dates between which you were held in pre-sentence custody to be from 6 June 2020 to yesterday, 22 July 2021, a total of 412 days, however, I declare that only part of that time is to be taken to be imprisonment already served under the sentence, namely, from 21 January 2021 to yesterday, 22 July 2021, a period of 183 days.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – INTERPRETATION OF SENTENCING PROVISIONS – TIME HELD IN PRESENTENCE CUSTODY TO BE DEDUCTED – whether a recent amendment to s 159A(1) of the Penalties and Sentences Act 1992 (Qld) means that it is open to the court to formally declare time the offender has been held in custody, even where that is in respect of a previous sentence of imprisonment, as opposed to being held on remand solely for the present or other offending – whether such an interpretation is an ‘unreasonable result’ as per s 14B Acts Interpretation Act 1954 (Qld) – whether in a case like the present it is appropriate to make a declaration of the kind now permitted by…

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 Stewart

Details

AGLC: R v Stewart [2021] QSC 187
Case: [2021] QSC 187
Decision Date: 23 July 2021

CaseChat Overview and Summary

The case of R v Stewart was before the Queensland Court of Appeal, which had to determine the appropriate sentence for the defendant, Stewart, who had been found guilty of various offences. The primary legal issues that the court was required to address were the interpretation of sentencing provisions, specifically whether a recent amendment to s 159A(1) of the Penalties and Sentences Act 1992 (Qld) permits the court to formally declare time the offender has been held in custody, even if that time was spent in custody for a previous sentence of imprisonment, rather than solely for the present or other offences. Additionally, the court had to decide whether such an interpretation would result in an unreasonable outcome under s 14B of the Acts Interpretation Act 1954 (Qld). The court also had to determine whether, in a case like the present, it was appropriate to make a declaration under the amended s 159A.

The court found that the amendment to s 159A(1) did indeed permit the court to declare the time spent in custody for previous sentences as part of the overall sentence. The court held that the interpretation did not lead to an unreasonable result, and it was appropriate to make such a declaration in the present case. The court emphasised that the amendment was intended to ensure that the offender's time in custody for previous sentences is taken into account when determining the total sentence, and that this approach did not lead to an unjust outcome. The court also noted that the defendant's custodial time prior to 21 January 2021 was not to be counted as time already served under the sentence, as it related to a previous sentence of imprisonment.

The court ordered the defendant to serve concurrent terms of imprisonment for the various offences committed, with specific terms for each charge. The evasion offence resulted in a cumulative sentence of two months imprisonment, which was to be served in addition to the concurrent sentences. The court also disqualified the defendant from holding or obtaining a driver's licence for two years and recorded convictions for all charges. Finally, the court declared the dates between which the defendant had been held in pre-sentence custody, specifying the period of time to be taken as already served under the sentence.

Orders

Orders of the court

1. On the sole count on the indictment, possession of dangerous drug with a circumstance of aggravation, 12 months imprisonment;

2. Summary charge ending 169, unlawful use of motor vehicle, four months imprisonment;

3. Summary charge ending 941, possession of dangerous drugs, one month imprisonment;

4. Summary charge ending in 041, obtain property, one month imprisonment;

5. Summary charge ending 033, possession of billy club, convicted, but not further punished;

6. Summary charge ending 050, one month imprisonment;

7. Summary charge ending 050, possession of utensils for use, glass pipe, one month imprisonment;

8. Summary charge ending 068, possession of property suspected of being acquired for the purpose of committing a drug offence, clipseal bags, one month imprisonment;

9. Summary charge ending 959, possession of flick knife, one month imprisonment;

10. Summary charge ending in 157, possession of digital scales, one month imprisonment;

11. Summary charge ending 939, holder of C-class licence failing to comply with requirements, convicted, but not further punished;

12. Summary charge ending 267, possession of dangerous drugs, one month imprisonment.

All of those terms of imprisonment are to be served concurrently with each other and with the sentence you are presently serving.

13. In respect of summary charge ending in 882, the evasion offence, I disqualify you from holding or obtaining a drivers licence for two years and sentence you to two months imprisonment, cumulative upon the sentences you are otherwise serving.

I fix your parole eligibility date as being 20 November 2021.

Convictions are recorded.

I declare, pursuant to s 159A(3B) the dates between which you were held in pre-sentence custody to be from 6 June 2020 to yesterday, 22 July 2021, a total of 412 days, however, I declare that only part of that time is to be taken to be imprisonment already served under the sentence, namely, from 21 January 2021 to yesterday, 22 July 2021, a period of 183 days.

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 Stewart [2021] QSC 187
PARTIES:	THE QUEEN v STEWART, Kody James (defendant)
FILE NO/S:	SC No 68 of 2021 SC No 87 of 2021
DIVISION:	Trial
PROCEEDING:	Sentence
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED EX TEMPORE ON:	23 July 2021
DELIVERED AT:	Cairns
HEARING DATES:	22 July 2021; 23 July 2021
JUDGE:	Henry J
ORDER:	1. On the sole count on the indictment, possession of dangerous drug with a circumstance of aggravation, 12 months imprisonment; 2. Summary charge ending 169, unlawful use of motor vehicle, four months imprisonment; 3. Summary charge ending 941, possession of dangerous drugs, one month imprisonment; 4. Summary charge ending in 041, obtain property, one month imprisonment; 5. Summary charge ending 033, possession of billy club, convicted, but not further punished; 6. Summary charge ending 050, one month imprisonment; 7. Summary charge ending 050, possession of utensils for use, glass pipe, one month imprisonment; 8. Summary charge ending 068, possession of property suspected of being acquired for the purpose of committing a drug offence, clipseal bags, one month imprisonment; 9. Summary charge ending 959, possession of flick knife, one month imprisonment; 10. Summary charge ending in 157, possession of digital scales, one month imprisonment; 11. Summary charge ending 939, holder of C-class licence failing to comply with requirements, convicted, but not further punished; 12. Summary charge ending 267, possession of dangerous drugs, one month imprisonment. All of those terms of imprisonment are to be served concurrently with each other and with the sentence you are presently serving. 13. In respect of summary charge ending in 882, the evasion offence, I disqualify you from holding or obtaining a drivers licence for two years and sentence you to two months imprisonment, cumulative upon the sentences you are otherwise serving. I fix your parole eligibility date as being 20 November 2021. Convictions are recorded. I declare, pursuant to s 159A(3B) the dates between which you were held in pre-sentence custody to be from 6 June 2020 to yesterday, 22 July 2021, a total of 412 days, however, I declare that only part of that time is to be taken to be imprisonment already served under the sentence, namely, from 21 January 2021 to yesterday, 22 July 2021, a period of 183 days.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – INTERPRETATION OF SENTENCING PROVISIONS – TIME HELD IN PRESENTENCE CUSTODY TO BE DEDUCTED – whether a recent amendment to s 159A(1) of the Penalties and Sentences Act 1992 (Qld) means that it is open to the court to formally declare time the offender has been held in custody, even where that is in respect of a previous sentence of imprisonment, as opposed to being held on remand solely for the present or other offending – whether such an interpretation is an ‘unreasonable result’ as per s 14B Acts Interpretation Act 1954 (Qld) – whether in a case like the present it is appropriate to make a declaration of the kind now permitted by…