R v Watter

[1997] QCA 24

COURT OF APPEAL

[1997] QCA 024

FITZGERALD P
DAVIES JA
McPHERSON JA

CA No 478 of 1996

THE QUEEN

v.

WADE ALLAN WATTER  Applicant

BRISBANE

..DATE 05/02/97

JUDGMENT

McPHERSON JA:  The applicant was sentenced in the District Court at Gympie for various offences to which he pleaded guilty.  In the end, the Judge imposed an effective sentence of three years with a recommendation for parole after 12 months.  He also specifically declared that 52 days that the applicant had spent in custody were related to the offences before him.  The result would have been, of course, that they would have counted as part of his serving of the sentence.

There was, however, a further period of three months that the applicant had spent in gaol or custody in respect of two other offences which, in the ordinary course of events, one would have expected would have been brought to account by way of reduction in the custodial period he was to serve.  The period so spent is not capable of being brought within the terms of the particular provision so as to require that the Judge make a declaration that that time would be taken off the time to be served under the sentence before him; but it is accepted by the Crown that it is a case in which in the ordinary course that period of custody would have gone in reduction of the term to be served.

Having regard to that concession, we consider that the application should be allowed to the extent of varying it by reducing the head sentence by the period in question, that period being three months.

What's the effect of that, Mr Byrne, he was given, in effect, three years.

MR BYRNE:  Three years with a recommendation after 12 months.

McPHERSON JA:  We have to reduce both those aspects, do we?  We have to reduce both the three years by three months and the 12 months by three months.

MR BYRNE:  Yes.

THE PRESIDENT:  We're going to reduce all the head sentences by three months, do we-----

MR BYRNE:  I don't know that that necessarily impacts on the head sentence.  It certainly impacts on the time that he should be released.

McPHERSON JA:  That's the easier way of doing it, isn't it?

MR BYRNE:  Yes.

McPHERSON JA:  No, it's not quite, because if he has a parole recommendation after 12 months and you simply reduce that to nine, he may not get parole and then he doesn't get the benefit of this, does he?

MR BYRNE:  But the fact that he'd spend time in custody wouldn't have effected the level of head sentence one would normally expect.  It would simply impact on the time he-----

DAVIES JA:  Yes, it would because it's counted as time, under 161, it's counted as time under the sentence.

THE PRESIDENT:  We're effectively treating this as coming within 161 and falling outside of it only by reason of a technicality.

MR BYRNE:  I accept that but even under 161, one would make the declaration which effectively reduces the time served but that doesn't impact on the head sentence, it just eats into the head sentence.

THE PRESIDENT:  Well, we can't do it by declaration, therefore we must reduce the head sentence.

MR BYRNE:  Yes, I take that point.

McPHERSON JA:  And it would only be the three years we would reduce, wouldn't it, because that's the only one that matters.

MR BYRNE:  The only operative one.

McPHERSON JA:  What about the parole recommendation?

THE PRESIDENT:  It comes down too.

McPHERSON JA:  The result of these discussions is, I think, that the proper order to make is that the sentence of imprisonment for three years in respect of count 6, which was stealing, should be reduced by a period of three months; and that the parole recommendation should operate after the applicant has served nine months of his sentences.  The 52 days already declared as pre-sentence custody are, of course, unaffected by these alterations.

THE PRESIDENT:  I agree.

DAVIES JA:  I agree.

THE PRESIDENT:   The application is granted, the appeal allowed to the extent that the sentence of three years' imprisonment imposed in respect of count 6 is set aside and a sentence of two years and nine months is substituted.  The head sentences in respect of the other offences are to stand. The recommendation that the applicant be considered for parole at the expiration of 12 months is set aside and in lieu it is recommended that he be considered for parole at the expiration of nine months.  The order that all sentences be concurrent stands and the declaration that the applicant served pre-sentence custody from and including 23 May 1996 to and including 12 June 1996 and from and including 16 June 1996 to and including 16 July 1996, of a total period of 52 days, is found and it is declared that that period of 52 days is to be treated as imprisonment served under the sentences imposed in the District Court as varied by these orders.

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