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
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.
He pleaded guilty to all of those offences on 18 June 2021.
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.
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.
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]
It was amended in 2020, by s 164 of the Justice and Other Legislation Amendment…
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- AGLC
- R v Whitely [2021] QSC 154
- Case
- [2021] QSC 154
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the interpretation of section 159A(1) of the Act, which pertains to the calculation of time spent in custody prior to sentencing. The court needed to determine how this pre-sentence custody time should be factored into the overall sentence and its implications for parole eligibility. Additionally, the court had to consider the appropriate length of the custodial sentence, taking into account the severity of the offence and the defendant’s criminal history.
The court meticulously examined the statutory language and relevant case law to interpret section 159A(1). It was determined that the time the defendant spent in custody prior to sentencing should be counted as time already served. Consequently, the court sentenced the defendant to three years’ imprisonment, to be served cumulatively with the previous nine-month sentence. The court also declared that the 243 days the defendant spent in custody from 30 July 2020 to 30 March 2021 would be considered as time already served. The court fixed the defendant’s eligibility for parole at 22 June 2021. The court further directed the Registry to expedite the necessary documents to the Parole Board Queensland for the defendant’s parole application under the COIPE program. Regarding the summary offences, the court recorded the convictions but decided against imposing any further punishment.
Orders
Orders of the court
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.
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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