R v TW - [2017] QDC 309

DISTRICT COURT OF QUEENSLAND

CITATION:

R v TW [2017] QDC 309

PARTIES:

THE QUEEN

v

TW

FILE NO/S:

40 of 2017

DIVISION:

Criminal

PROCEEDING:

Re-opening sentence: Penalties and Sentences Act 1992 s 188

ORIGINATING COURT:

District Court at Hervey Bay

DELIVERED ON:

19 December 2017

DELIVERED AT:

District Court at Maroochydore

HEARING DATE:

27 October, 23 November and 19 December 2017

JUDGE:

Long SC DCJ

ORDER:

1.   Sentencing proceedings re-opened under s 188 of the Penalties and Sentences Act 1992.

2.   Sentence imposed on count 6 of indictment number 40 of 2017 set aside.

3.   Leave granted for defendant to withdraw guilty plea to count 6 of indictment number 40 of 2017.

4.   Defendant discharged on count 6 of indictment number 40 of 2017, upon nolle prosequi.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCE IMPOSED NOT IN ACCORDANCE WITH THE LAW – Where the defendant was indicted, pleaded guilty and was sentenced for an offence which did not exist at the time alleged – Where the sentence imposed was not in accordance with the law, in that it was not known to law – Whether the Court is able to exercise power pursuant to s 188 of the Penalties and Sentences Act 1992 to re-open the sentence

LEGISLATION:

Criminal Code Act 1899 ss 11(1); 315A
Criminal Law (Domestic Violence) Amendment Act 2016 s 3

Penalties and Sentences Act 1992 ss 4; 188; 188(1); 188(1)(a); 188(3); 188(3)(b); 188(3)(c)

CASES:
R v Adams [2006] QDC 197
Maxwell v R (1996) 184 CLR 501

R v Mundraby [2004] QCA 493

COUNSEL:

S Dennis for the Crown

J Benjamin for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions (Qld) for the Crown

Aboriginal and Torres Strait Islander Legal Service for the defendant

HIS HONOUR: On the 28^th of August 2017, the defendant was arraigned in the District Court at Hervey Bay and he then pleaded guilty to 24 of 26 counts, contained in indictment number 40 of 2017. And a nolle prosequi was entered in respect of the other two counts being, respectively, counts 8 and 26 on that indictment.

The offences were particularised to have occurred in a period between July 2015 and August 2016 and as being committed at various locations at Imbil and at Hervey Bay and in respect of the defendant’s then female partner. Although and for the main part, that couple had continued residing together in this period, count 1 charged an offence of unlawful stalking which was particularised, as to the constituent acts, by the conduct which was the subject of the remaining offences on the indictment, in the main. There was also offending in breach of a suspended sentence and parole and there were repeated contraventions of a domestic violence order involved, as well.

The record of the proceedings on 8^th of September 2017, when the defendant was sentenced, as adjourned from the 28^th of August 2017, including the sentencing remarks, set out the detail upon which the sentences were imposed. On…

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 TW

Details

AGLC: R v TW [2017] QDC 309
Case: [2017] QDC 309
Decision Date: 19 December 2017

CaseChat Overview and Summary

The defendant, TW, was convicted and sentenced for an offence under an Act that did not exist at the time the offence was alleged to have occurred. This discrepancy came to light during the appeal process, prompting the defendant to challenge the legality of the sentence. The matter was brought before the court to determine if the sentence imposed was in accordance with the law, given the non-existence of the offence at the time it was alleged. The court was required to assess whether the sentence imposed was valid and, if not, whether it had the jurisdiction to re-open the sentencing proceedings in light of the statutory provisions.

The legal issues before the court were whether the sentence imposed was lawful, and if not, whether the court had the authority to re-open the sentencing process under section 188 of the Penalties and Sentences Act 1992. The court considered the principles of legality in sentencing and the implications of the sentence being imposed for an offence that did not exist at the time it was alleged. It was necessary to determine if the sentence could be set aside and if the defendant was entitled to withdraw his guilty plea.

The court found that the sentence imposed was not in accordance with the law, as it was based on an offence that did not exist at the relevant time. Pursuant to section 188 of the Penalties and Sentences Act 1992, the court exercised its power to re-open the sentencing proceedings. The sentence on count 6 of the indictment was set aside, and the defendant was granted leave to withdraw his guilty plea. The defendant was then discharged on count 6, with the prosecution entering a nolle prosequi.

The court's final orders included re-opening the sentencing proceedings, setting aside the sentence on count 6, granting the defendant leave to withdraw his guilty plea, and discharging the defendant on that count. The court’s decision underscored the importance of ensuring that sentences are imposed in accordance with the law, and it highlighted the legislative power available to correct such errors.

Orders

Orders of the court

1. Sentencing proceedings re-opened under s 188 of the Penalties and Sentences Act 1992.

2. Sentence imposed on count 6 of indictment number 40 of 2017 set aside.

3. Leave granted for defendant to withdraw guilty plea to count 6 of indictment number 40 of 2017.

4. Defendant discharged on count 6 of indictment number 40 of 2017, upon nolle prosequi.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v TW [2017] QDC 309
PARTIES:	THE QUEEN v TW
FILE NO/S:	40 of 2017
DIVISION:	Criminal
PROCEEDING:	Re-opening sentence: Penalties and Sentences Act 1992 s 188
ORIGINATING COURT:	District Court at Hervey Bay
DELIVERED ON:	19 December 2017
DELIVERED AT:	District Court at Maroochydore
HEARING DATE:	27 October, 23 November and 19 December 2017
JUDGE:	Long SC DCJ
ORDER:	1. *Sentencing proceedings re-opened under s 188 of the Penalties and Sentences Act* 1992. 2. Sentence imposed on count 6 of indictment number 40 of 2017 set aside. 3. Leave granted for defendant to withdraw guilty plea to count 6 of indictment number 40 of 2017. 4. Defendant discharged on count 6 of indictment number 40 of 2017, upon nolle prosequi.**
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCE IMPOSED NOT IN ACCORDANCE WITH THE LAW – Where the defendant was indicted, pleaded guilty and was sentenced for an offence which did not exist at the time alleged – Where the sentence imposed was not in accordance with the law, in that it was not known to law – Whether the Court is able to exercise power pursuant to s 188 of the Penalties and Sentences Act 1992 to re-open the sentence
LEGISLATION:	Criminal Code Act 1899 ss 11(1); 315A Criminal Law (Domestic Violence) Amendment Act 2016 s 3 Penalties and Sentences Act 1992 ss 4; 188; 188(1); 188(1)(a); 188(3); 188(3)(b); 188(3)(c)
CASES:	R v Adams [2006] QDC 197 Maxwell v R (1996) 184 CLR 501 R v Mundraby [2004] QCA 493
COUNSEL:	S Dennis for the Crown J Benjamin for the defendant
SOLICITORS:	Office of the Director of Public Prosecutions (Qld) for the Crown Aboriginal and Torres Strait Islander Legal Service for the defendant