R v Uittenbosch - [2004] QSC 439

SUPREME COURT OF QUEENSLAND

CITATION:

R v Uittenbosch [2004] QSC 439

PARTIES:

THE QUEEN
(respondent)
v
SHANE ANTHONY UITTENBOSCH
(applicant)

FILE NO/S:

SC No 484 of 2002

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

24 November 2004

JUDGE:

Holmes J

ORDER:

I declare that the sentence of three years imprisonment imposed by me on Mr Uittenbosch on 29 May 2003 began on 15 June 2003.

CATCHWORDS:

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE – DATE OF COMMENCEMENT – where the applicant seeks a reopening of a sentence under s 188 of the Penalties and Sentences Act 1992 – where the applicant was sentenced as an adult to a period of imprisonment cumulative on a sentence which had been imposed on him while he was a juvenile – whether the cumulative sentence should run from the date on which he was entitled to the benefit of a fixed release order under the juvenile sentence, or from the end of the entire period of detention imposed on him as a juvenile

Corrective Services Act 2000 (Qld), s 81, s 153
Juvenile Justice Act 1992 (Qld), s 188, s 189, s 211, s 270
Juvenile Justice Amendment Act 2002 (Qld), s 103
Juvenile Justice Legislation Amendment Act 1996 (Qld), s72
Penalties and Sentences Act 1992 (Qld), s 4, s 156A, s 188
Statute Law (Miscellaneous Provisions) Act (No. 2) 1994 (Qld), Schedule 1

R v Maxfield [2002] 1 Qd R 417, cited
Williams v Queensland Community Corrections Board [2001] 1 Qd R 557, cited

COUNSEL:

Mr Chowdhury for the applicant
Mr Hinson SC for the Director-General of the Department of Corrective Services
Mr Nathan for the Director of Public Prosecutions (Qld)
Mr P Hall (Solicitor) for the Director-General of the Department of Communities

SOLICITORS:

Legal Aid Queensland for the applicant
Crown Solicitor for the Director-General of the Department of Corrective Services
Crown Solicitor for the Director-General of the Department of Communities
Director of Public Prosecutions (Qld)

The applicant, Shane Anthony Uittenbosch, seeks the reopening of a sentence under s 188 of the Penalties and Sentences Act 1992. Mr Uittenbosch was sentenced as an adult to a period of imprisonment cumulative on a sentence which had been imposed on him while he was a juvenile. Essentially, the issue is this: whether the cumulative sentence should run from the date on which he was entitled to the benefit of a fixed release order under the juvenile sentence, or from the end of the entire period of detention imposed on him as a juvenile.

Mr Uittenbosch was born on 15 July 1980. On 20 June 1997, he was found guilty of murder. On 6 August 1997, he was sentenced, as a juvenile, to detention for 12 years. He had already served 49 days of the sentence as at that date. Section 188(2) of the Juvenile Justice Act 1992, as…

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 Uittenbosch

Details

AGLC: R v Uittenbosch [2004] QSC 439
Case: [2004] QSC 439
Decision Date: 10 December 2004

CaseChat Overview and Summary

The applicant in this matter sought a reopening of his sentence under section 188 of the Penalties and Sentences Act 1992, challenging the commencement date of his sentence of imprisonment. The applicant was sentenced to a period of imprisonment as an adult, which was to be cumulative on a sentence imposed on him while he was a juvenile. The central issue before the court was whether the cumulative sentence should begin on the date the applicant was entitled to the benefit of a fixed release order under the juvenile sentence, or from the end of the entire period of detention imposed on him as a juvenile.

The court found that the applicant's sentence of imprisonment should begin from the date he was entitled to the benefit of a fixed release order under the juvenile sentence. The court held that a sentence of imprisonment imposed on an adult should run concurrently with a sentence imposed on a juvenile if the latter is still serving that sentence. In this case, the applicant had been sentenced as an adult to a period of imprisonment that was to run cumulatively on the sentence imposed on him while he was a juvenile. The court considered the applicant's entitlement to the benefit of a fixed release order under the juvenile sentence, and determined that the cumulative sentence should begin on the date the applicant was entitled to that benefit.

The final orders of the court were that the sentence of three years imprisonment imposed by the court on the applicant on 29 May 2003 began on 15 June 2003. This was the date on which the applicant was entitled to the benefit of a fixed release order under the juvenile sentence. The court declared that the sentence should run from this date, and not from the end of the entire period of detention imposed on the applicant as a juvenile.

Orders

Orders of the court

I declare that the sentence of three years imprisonment imposed by me on Mr Uittenbosch on 29 May 2003 began on 15 June 2003.

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 Uittenbosch [2004] QSC 439
PARTIES:	THE QUEEN (respondent) v SHANE ANTHONY UITTENBOSCH (applicant)
FILE NO/S:	SC No 484 of 2002
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	10 December 2004
DELIVERED AT:	Brisbane
HEARING DATE:	24 November 2004
JUDGE:	Holmes J
ORDER:	I declare that the sentence of three years imprisonment imposed by me on Mr Uittenbosch on 29 May 2003 began on 15 June 2003.
CATCHWORDS:	CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE – DATE OF COMMENCEMENT – where the applicant seeks a reopening of a sentence under s 188 of the Penalties and Sentences Act 1992 – where the applicant was sentenced as an adult to a period of imprisonment cumulative on a sentence which had been imposed on him while he was a juvenile – whether the cumulative sentence should run from the date on which he was entitled to the benefit of a fixed release order under the juvenile sentence, or from the end of the entire period of detention imposed on him as a juvenile Corrective Services Act 2000 (Qld), s 81, s 153 Juvenile Justice Act 1992 (Qld), s 188, s 189, s 211, s 270 Juvenile Justice Amendment Act 2002 (Qld), s 103 Juvenile Justice Legislation Amendment Act 1996 (Qld), s72 Penalties and Sentences Act 1992 (Qld), s 4, s 156A, s 188 Statute Law (Miscellaneous Provisions) Act (No. 2) 1994 (Qld), Schedule 1 R v Maxfield [2002] 1 Qd R 417, cited Williams v Queensland Community Corrections Board [2001] 1 Qd R 557, cited
COUNSEL:	Mr Chowdhury for the applicant Mr Hinson SC for the Director-General of the Department of Corrective Services Mr Nathan for the Director of Public Prosecutions (Qld) Mr P Hall (Solicitor) for the Director-General of the Department of Communities
SOLICITORS:	Legal Aid Queensland for the applicant Crown Solicitor for the Director-General of the Department of Corrective Services Crown Solicitor for the Director-General of the Department of Communities Director of Public Prosecutions (Qld)