R v Swayn

[2009] QCA 179

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successfully appealed the respondent’s sentence as being manifestly inadequate – where the sentencing judge originally made a pre-sentence custody declaration for seven days imprisonment already served by the respondent – where such a declaration was not made when the Court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

1. : 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.

1. The orders originally made in the District Court included a declaration under s 159A of the Penalties and Sentences Act 1992 (Qld) that seven days of pre-sentence custody be deemed time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.

1. 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.

1. 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.