R v Vaughan

[2009] QCA 295

SUPREME COURT OF QUEENSLAND

CITATION:

R v Vaughan [2009] QCA 295

PARTIES:

R
v
VAUGHAN, Danny Eugene
(appellant/applicant)

FILE NO/S:

CA No 37 of 2009
DC No 28 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Ipswich

DELIVERED EX TEMPORE ON:

6 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

6 October 2009

JUDGES:

Keane, Holmes and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   Appeal against conviction dismissed;

2.   Application for leave to appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – OTHER MATTERS – where appeal against conviction abandoned – where applicant contended sentencing judge erred in application of provisions of Penalties and Sentences Act 1992 (Qld) – where alleged error did not affect sentence imposed, and Court of Appeal would not make any different order – whether Court should correct alleged error

Penalties and Sentences Act 1992 (Qld), s 160B, s 160C

COUNSEL:

C W Heaton for the appellant/applicant
M J Copley SC for the respondent

SOLICITORS:

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

HOLMES JA:  The applicant has applied for leave to appeal against his sentence of three years imprisonment, with parole eligibility after 18 months, imposed after a trial on one count of enter premises and steal.  That sentence was ordered to be served concurrently with an activated suspended sentence of 18 months relating to an earlier conviction for entering premises and committing an indictable offence. 

It is not contended that the sentence imposed was manifestly excessive; unsurprisingly, given the applicant’s extensive criminal history, involving many previous such offences. It is, however, said that the learned judge erred in identifying the relevant “period of imprisonment” for the purposes of s 160B and s 160C of the Penalties and Sentences Act 1992 in determining whether a parole eligibility date or a parole release date should be fixed.

However, it is conceded that the relevant period of imprisonment was, in any event, longer than three years so that the applicant was not entitled to a parole release date; so that whatever one makes of the argument, the sentence imposed would be unaffected. 

In those circumstances, there is, in my view, nothing to be gained by embarking on an exploration of the question raised, assuming, indeed, the jurisdiction exists to do so.  I would dismiss the application for leave to appeal against sentence.

KEANE JA:  I agree.

FRASER JA:  I agree.

KEANE JA:  The orders of the Court will be appeal against conviction dismissed, application for leave to appeal against sentence dismissed.