R v Whitely

[2021] QSC 154

SUPREME COURT OF QUEENSLAND

CITATION:

The Queen v Whitely [2021] QSC 154

PARTIES:

R

v

JESSE WHITELY

(Defendant)

FILE NO/S:

Indictment 440 of 2021; BS 758 of 2021

DIVISION:

Trial Division

PROCEEDING:

Sentence

DELIVERED ON:

22 June 2021

DELIVERED AT:

Brisbane

HEARING DATE:

18 and 22 June 2021

JUDGE:

Bowskill J

ORDERS:

1.    On the count on the indictment, the defendant is sentenced to three years’ imprisonment, to be served cumulatively on the nine month sentence imposed by the Magistrates Court on 2 October 2020.

2. Pursuant to s 159A(3B) of the Penalties and Sentences Act 1992, the Court declares that the time the defendant was held in custody from 30 July 2020 to 30 March 2021, which is 243 days, is imprisonment already served under the sentence imposed today.

3.    The date the defendant is eligible for parole is fixed at 22 June 2021.

4.    Direct the Registry of the Court to provide the statement of agreed facts (exhibit 5) and these sentencing remarks, without delay, to the Parole Board Queensland to facilitate determination of the defendant’s application for parole under the COIPE program.

5.    In respect of the summary offences, the convictions are recorded but no further punishment is imposed.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – INTERPRETATION OF SENTENCING PROVISIONS – consideration of the construction of s 159A(1) of the Penalties and Sentences Act 1992 (Qld)

COUNSEL:

S Dickson, for the Crown

D Boddice, for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions, for the Crown
A W Bale & Son, for the defendant

1. The defendant is to be sentenced for one count of trafficking in a dangerous drug and five summary offences transmitted to this court pursuant to s 651 of the Criminal Code, including charges of possessing various dangerous or restricted drugs, possessing things used in the commission of such a crime (digital scales) and a pipe that had been used in connection with smoking a dangerous drug.

2. He pleaded guilty to all of those offences on 18 June 2021.

3. In the course of the sentencing hearing on that day, an issue arose as to the proper construction of s 159A(1) of the Penalties and Sentences Act 1992. The proceeding was adjourned to enable the legal representatives to give further consideration to this, and also for the Crown to make enquiries as to whether the pre-sentence custody certificate tendered on the sentence was accurate.

4. At the resumption of the sentencing hearing today, the Crown has tendered an amended pre-sentence custody certificate, but it has only changed in one minor respect.

5. Section 159A(1) of the Penalties and Sentences Act now provides:

   “If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders.” [underlining added]

6. It was amended in 2020, by s 164 of the Justice and Other Legislation Amendment…