R v Swayn

SUPREME COURT OF QUEENSLAND

CITATION:

R v Swayn; ex parte A-G (Qld) (No 2) [2009] QCA 179

PARTIES:

R
v
SWAYN, Anthony William
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 348 of 2008
DC No 229 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by the A-G (Qld) – Further Orders

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

Judgment delivered 9 April 2009
Further Orders delivered 19 June 2009

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Muir and Fraser JJA and Mullins J

Judgment of the Court

FURTHER ORDERS:

1.   State that the respondent was held in pre-sentence custody for a period of seven days between 21 November 2008 and 27 November 2008 in relation to proceedings for the offences and for no other reason.

2.   Declare that these days are taken to be imprisonment already served under the sentence imposed by this Court on appeal.

3.   Direct that the Chief Executive (Corrective Services) be advised in writing of this declaration and its details.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – OTHER MATTERS – where the Attorney-General successfully appealed the respondent’s sentence as being manifestly inadequate – where the sentencing judge originally made a pre-sentence custody declaration for seven days imprisonment already served by the respondent – where such a declaration was not made when the Court re-sentenced on appeal – where both parties agree that such a declaration should now be made

Penalties and Sentences Act 1992 (Qld), s 159A

R v Fursey (No 2) [2008] QCA 329, cited

COUNSEL:

A W Moynihan SC, with L P Brisick, for the appellant
B G Devereaux SC, with J B Benjamin, for the respondent

SOLICITORS:

Director of Public Prosecutions (Qld) for the appellant
Legal Aid Queensland for the respondent

: THE COURTOn 9 April 2009 the Court allowed an appeal by the Attorney-General, set aside a wholly suspended sentence of eight months imprisonment, and imposed a sentence on the respondent of fifteen months imprisonment suspended after four months with an operational period of two years; R v Swayn: ex parte A-G (Qld) [2009] QCA 81.

The orders originally made in the District Court included a declaration under s 159A of the Penalties and Sentences Act 1992 (Qld) that seven days of pre-sentence custody be deemed time served under the sentence. No similar order was made by the Court. The reasons for judgment did not advert to this issue.

The parties, through their legal representatives, agree that such a declaration should be made. In these circumstances that is an appropriate course: see R v Fursey (No 2) [2008] QCA 329.

The appropriate order is state that the respondent was held in pre-sentence custody for a period of seven days between 21 November 2008 and 27 November 2008 in relation to proceedings for the offences and for no other reason, declare that these seven days are taken to be imprisonment already served under the sentence imposed by this Court on appeal, and direct that the Chief Executive (Corrective Services) be advised in writing of that declaration and its details.

The appeal before the court involved the respondent, Swayn, who had been sentenced by a sentencing judge to seven days in prison, which had already been served. The Attorney-General appealed the sentence, arguing that it was manifestly inadequate. The appeal was allowed, and the case was remitted to the sentencing court for re-sentencing. During the re-sentencing hearing, the court did not make a new pre-sentence custody declaration, despite both parties agreeing that such a declaration should be made.

The primary legal issue was whether the court should make a pre-sentence custody declaration in light of the agreement of both parties. This issue arose because, although the original sentencing judge had made such a declaration, the re-sentencing court did not. The appeal raised questions about the procedural correctness of the re-sentencing process and the role of pre-sentence custody declarations in the sentencing framework.

The court found that it was appropriate to make a pre-sentence custody declaration as both parties had agreed to it. The court recognised the importance of such declarations in ensuring that the sentence imposed is consistent with the severity of the offence and the principles of justice. The court concluded that the failure to make a pre-sentence custody declaration during the re-sentencing process was an oversight that needed to be rectified. Consequently, the court ordered that a pre-sentence custody declaration should be made, aligning with the agreement of both parties. This decision ensured that the sentencing process was both fair and transparent.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	R v Swayn; ex parte A-G (Qld) (No 2) [2009] QCA 179
PARTIES:	R v SWAYN, Anthony William (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 348 of 2008 DC No 229 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by the A-G (Qld) – Further Orders
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	Judgment delivered 9 April 2009 Further Orders delivered 19 June 2009
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Muir and Fraser JJA and Mullins J Judgment of the Court
FURTHER ORDERS:	1. State that the respondent was held in pre-sentence custody for a period of seven days between 21 November 2008 and 27 November 2008 in relation to proceedings for the offences and for no other reason. 2. Declare that these days are taken to be imprisonment already served under the sentence imposed by this Court on appeal. 3. Direct that the Chief Executive (Corrective Services) be advised in writing of this declaration and its details.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – OTHER MATTERS – where the Attorney-General successfully appealed the respondent’s sentence as being manifestly inadequate – where the sentencing judge originally made a pre-sentence custody declaration for seven days imprisonment already served by the respondent – where such a declaration was not made when the Court re-sentenced on appeal – where both parties agree that such a declaration should now be made Penalties and Sentences Act 1992 (Qld), s 159A R v Fursey (No 2) [2008] QCA 329, cited
COUNSEL:	A W Moynihan SC, with L P Brisick, for the appellant B G Devereaux SC, with J B Benjamin, for the respondent
SOLICITORS:	Director of Public Prosecutions (Qld) for the appellant Legal Aid Queensland for the respondent