R v Wilson

In the matter of R v Wilson, the appellant, Mr Wilson, appealed against his sentence on the grounds that the sentencing judge acted on the wrong principle when considering his pre-sentence custody. Mr Wilson had pleaded guilty to 12 drug offences and one Weapons Act 1990 (Qld) offence, all committed on 9 June 2019. The sentencing judge declared a period of 51 days as time served under the sentence. Mr Wilson argued that the sentencing judge failed to adequately address his pre-sentence custody, as the sentence did not proceed in accordance with s 159A of the Penalties and Sentences Act 1992 (Qld), and the principle of totality in relation to overlapping sentences was not appropriately applied.

The court was required to determine whether the sentencing judge's error in principle warranted a re-sentencing or if the same or a more severe sentence could be imposed without first allowing the appeal. The court held that the sentencing judge imposed the sentence on the legally incorrect premise that s 159A did not apply to the 288 days during which Mr Wilson was held in custody in relation to the subject offences and the previous sentence. This error of principle caused the sentencing discretion to miscarry. The court must re-sentence afresh unless it concludes, through an independent exercise of its discretion, that the same or a more severe sentence is appropriate. The court ordinarily should not impose a more severe sentence upon a convicted person's application for leave to appeal, and it should not do so without first allowing the application for leave to appeal and giving the applicant an opportunity to discontinue the appeal.

The court dismissed the application for leave to appeal, finding that the same or a more severe sentence was not the appropriate sentence in this case.