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R v Winkelmann

R v Winkelmann

Case [2022] QDC 49 9 March 2022

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DISTRICT COURT OF QUEENSLAND

CITATION:

R v Winkelmann [2022] QDC 49

PARTIES:

R

v

ANTHONY JOHN WINKELMANN

(Defendant)

FILE NO:

330/2021

DIVISION:

Criminal

PROCEEDING:

Ruling

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

9 March 2022 (Ruling and Sentence); 16 March 2022 (Reasons)

DELIVERED AT:

Maroochydore

HEARING DATE:

14 February 2022 and 9 March 2022

JUDGE:

Long SC, DCJ

RULING:

That a parole release date be fixed pursuant to s 160B(3) of the Penalties and Sentences Act 1992.

CATCHWORDS:

CRIMINAL LAW – PAROLE – where the defendant had been released on parole – where the offender was to be sentenced for offences committed after suspension of parole – where prior to sentence he had served his entire liability under his previous period of imprisonment – whether the Court was required to fix a parole release date or parole eligibility date

LEGISLATION:

Corrective Services Act 2006 ss 108, 112, 194, 199, 200, 205, 206, 208B, 209, 210, 211, 214, 215
Justice and Other Legislation Amendment Act 2004 s 79
Penalties and Sentences Act 1992 ss 154, 155, 156, 156A, 158, 159A, 160, 160A, 160B, 160C, 160D, 160E, 160F, 160G

CASES:

Chevathen v Queensland Police Service [2016] QDC 270.
Rule v Commissioner of Police [2016] QDC 64
R v Braeckmans [2022] QCA 25
R v Nagy [2004] 1 Qd R 63
R v Pepper (1999) 104 A Crim R 135
R v Smith [2015] 1 Qd R 323
R v Wilson [2022] QCA 18

COUNSEL:

Stark, A.Q for the Crown
Dixon, M.P for the defendant

SOLICITORS:
Director of Public Prosecutions for the Crown

Legal Aid Queensland for the defendant

Introduction

On 9 March 2022, the abovenamed defendant (“offender”) was sentenced for the offences of assault occasioning bodily harm (committed on 2 October 2019) and robbery with personal violence (committed on 17 December 2019). He was then sentenced to serve a period of 3 years imprisonment, comprised of concurrent terms of 6 months imprisonment for the offence of assault occasioning bodily harm and 3 years imprisonment for the offence of robbery with personal violence. Pursuant to s 159A(3B) of the Penalties and Sentences Act 1992 (“PSA”), it was stated that there had been 438 days of pre-sentence custody in relation to these offences, from 26 December 2020 to 8 March 2022, but that only 34 days from 3 February to 8 March 2022 was declared as time already served in respect of the sentence imposed. A parole release date was fixed as 3 May 2022.
These reasons relate to the question which arose as to whether the Court was required to fix a parole release date, or a parole eligibility date for this offender. In particular, the question was as to whether ss 160B or 160C of the PSA applied.[1] It may be noted that pursuant to s 160A(1) and except where ss (6) applies, these provisions apply respectively when a court is imposing a term of imprisonment on an offender for an offence. And further, pursuant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Winkelmann

Details

AGLC: R v Winkelmann [2022] QDC 49
Case: [2022] QDC 49
Decision Date: 9 March 2022 (Ruling and Sentence); 16 March 2022 (Reasons)

CaseChat Overview and Summary

In the case of R v Winkelmann, the defendant had been released on parole and subsequently committed further offences, leading to his sentencing. The primary legal issue was whether the Court was required to fix a parole release date or parole eligibility date for the defendant, who had already served his entire liability under his previous period of imprisonment. The Court considered whether the earlier pre-sentence custody could be counted towards the new sentence and whether it should be taken into account when fixing the parole release date.

The Court's reasoning involved the interpretation of relevant sections of the Prisoners Sentencing Act, particularly sections 159A(1) and 159A(3B). It concluded that the earlier pre-sentence custody not only counted towards the defendant's liability under his previous period of imprisonment but also needed to be considered in fixing an appropriate head sentence and parole release date for the new sentence imposed. The Court noted that the decision in Kanaveilomani and R v Smith provided some guidance, but the specific circumstances of this case led to a different conclusion regarding the single period of imprisonment to be served.

Ultimately, the Court decided that the sentence to be imposed upon the defendant did not engage section 160B(2) of the PSA because there had been no cancellation of any court-ordered parole order during his period of imprisonment. However, it did engage section 160B(3) of the PSA, meaning the Court was required to fix a parole release date in respect of his period of imprisonment.

The final orders of the Court included the imposition of a sentence of three years' imprisonment, with the effective parole release date being fixed in accordance with the Court's reasoning.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the circumstances and also having regard to the appropriate common ground that an effective sentence of a period of three years’ imprisonment might then be appropriately imposed, this offender had the benefit of further recognising the factors favouring the prisoner, in effecting or fixing a parole release date for him. Accordingly, and as far as the application of s 159A(3B) was concerned and therefore ordering otherwise than as required under s 159A(1), the effective reasoning for the declaration made was that the earlier pre-sentence custody to which s 159A(1) was applicable, not only counted in respect of the offender’s liability under his previous period of imprisonment but was otherwise taken into account in fixing an appropriate head sentence and parole release date for the sentence which was imposed.Conclusion Before noting the effect of the conclusions reached in this matter, it should be noted that at face value, reference to the decision in Kanaveilomani may be seen as in tension with the conclusion reached here as to the separate period of imprisonment that was to be effected by the sentence imposed by the Court. In the first instance it may be noted that the prosecution expressly disavowed any reliance on the application of s 160C of the PSA. Moreover and quite apart from noting that the particular considerations relating to the definition of “period of imprisonment” which have been noted above,[35] do not appear to have been engaged in Kanaveilomani, it may be noted that neither were the considerations as to the contingent liability arising from the subsequent sentence, as were particularly noted in R v Smith.[36] When the circumstances of Kanaveilomani are considered in that light,[37]even in the absence of any order accumulating the respective sentences, it is apparent that there was a concurrent obligation to serve that contingent liability (albeit only 3 days relating to the period from 25 to 27 January 2009),[38] establishing the necessary nexus with the earlier sentence. Therefore, the conclusion as to a single period of imprisonment is justifiable upon that basis and in accordance with the reasoning set out above.[35] At paragraphs [24]-[27] and [32].[36] [2015] 1 Qd R 323 at [30]-[31].[37] [2015] 2 Qd R 509 at [2] and [31].[38] It may be that the implications as to the potential applicability of s 156A of the PSA were not considered when the subsequent sentence was imposed, as may, particularly since the decision in Smith, be recognised as a usual consideration arising where there has been offending in respect of Schedule 1 offences by a parolee. It was for these reasons that it was concluded that the sentence to be imposed upon this offender on 9 March 2022:(a)did not engage s 160B(2) of the PSA, in that there had been no cancellation of any court ordered parole order during his period of imprisonment, which would be entirely constituted by the terms of imprisonment imposed on and commencing on that date, less the presentence custody declared to be time already served; and (b)Did engage s160B(3) of the PSA, so that the Court was required to fix a parole release date in respect his period of imprisonment.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

R v Winkelmann [2022] QDC 49

Most Recent Citation

GHN v Commissioner of Police [2022] QDC 86

Cases Citing This Decision

GHN v Commissioner of Police [2022] QDC 86
Citation 1 (Para 6)

…y in relation to presentence custody.[31] [31] R v Wilson [2022] QCA 18 at [18]; R v Whitely [2021] QSC 154; R v Stewart [2021] QSC 187; R Winkelmann [2022] QDC 49 at [33]-[34].…

See all citing cases →

Cases Cited

R v Braeckmans [2022] QCA 25
Citation 1 (Para 14)

…use of a perceived effect of concurrency of sentence in avoidance of the mandatory requirement of accumulation in s 156A.[20] [18] Ibid at [33]. [19] [2022] QCA 25. Although as noted at [26], the issue as to the application of s 156A of the PSA did not arise in Wilson . [20] [2022] QCA 25 at [29]-[30].…
R v Wilson [2022] QCA 18
Citation 2 (Para 13)

…the declaration of the pre-sentence custody to which s 159A(1) is now applicable, having regard to the remaining provisions in that section. [17] [2022] QCA 18 at 31 – 32.…
R v Pepper [2018] SASC 184
Citation 3 (Para 7)

…es of parole, would be the imposition of 3 years imprisonment on that basis, there was, appropriately, no contention that s 160C was engaged. [14] In R v Pepper (1999) 104 A Crim R 135 at [7] – [8], it was determined, as the preferable view of s 156A, that the mandatory requirement did not apply to terms of imprison…
R v Vidler [2018] QCA 232
Citation 4 (Para 15)

…that period of imprisonment. [21] Ibid at [29]. [22] Eg: see; R v Fabre [2008] QCA 386 at [14], R v NT [2018] QCA 106 at [26]-[28] and R v Vidler [2018] QCA 232 at pp3-4.…
R v NT [2018] QCA 106
Citation 5 (Para 15)

…arily counted in respect of the service of that period of imprisonment. [21] Ibid at [29]. [22] Eg: see; R v Fabre [2008] QCA 386 at [14], R v NT [2018] QCA 106 at [26]-[28] and R v Vidler [2018] QCA 232 at pp3-4.…
Chevathen v Queensland Police Service [2016] QDC 270
Citation 6 (Para 2)

…r, is flawed and not consistent with the relevant provisions of the CSA . The prosecution submission is to be accepted for the following reasons. [4] [2016] QDC 270.…
Rule v Commissioner of Police [2016] QDC 64
Citation 7 (Para 6)

…s or periods of imprisonment, because of the implications of dealing with declaration as to pre-sentence custody pursuant to s 159A of the PSA . [13] [2016] QDC 64.…
R v McCusker [2015] QCA 179
Citation 8 (Para 16)

…entence custody which relates only to being remanded in custody in respect of the offences for which sentence is to be imposed. See also R v McCusker [2015] QCA 179, where the unusual circumstances also involved the past serving of complete liability under a prior sentence and the coincidence of time on remand fo…
R v Barry [2011] QCA 119
Citation 9 (Para 16)

…od of imprisonment.[27] [23] [2022] QCA 18 at [33]. [24] Ibid at [26(c)]. [25] For example see: R v Silasack [2009] QCA 88 at [46]-[47] and R v Barry [2011] QCA 119 at [16]-[18]. As was the case here, different considerations arise in respect taking into account the extent to which past completed sentences have b…
R v Silasack [2009] QCA 88
Citation 10 (Para 16)

…ixing of parole entitlement for that period of imprisonment.[27] [23] [2022] QCA 18 at [33]. [24] Ibid at [26(c)]. [25] For example see: R v Silasack [2009] QCA 88 at [46]-[47] and R v Barry [2011] QCA 119 at [16]-[18]. As was the case here, different considerations arise in respect taking into account the exten…
R v Fabre [2008] QCA 386
Citation 11 (Para 15)

…ion is that this time is necessarily counted in respect of the service of that period of imprisonment. [21] Ibid at [29]. [22] Eg: see; R v Fabre [2008] QCA 386 at [14], R v NT [2018] QCA 106 at [26]-[28] and R v Vidler [2018] QCA 232 at pp3-4.…

Legislation Cited

Corrective Services Act 2006 (Qld) 108, 112, 194, 199, 200, 205, 206, 208B,...
14 mentions (from Para 3)
Penalties and Sentences Act 1992 (Qld) 154, 155, 156, 156A, 158, 159A, 160, 160...
14 mentions (from Para 1)
Criminal Practice Rules 1999 (Qld)
1 mention (from Para 4)
Justice and Other Legislation Amendment Act 2004 (Qld) 79
1 mention

CITATION:	R v Winkelmann [2022] QDC 49
PARTIES:	R v ANTHONY JOHN WINKELMANN (Defendant)
FILE NO:	330/2021
DIVISION:	Criminal
PROCEEDING:	Ruling
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	9 March 2022 (Ruling and Sentence); 16 March 2022 (Reasons)
DELIVERED AT:	Maroochydore
HEARING DATE:	14 February 2022 and 9 March 2022
JUDGE:	Long SC, DCJ
RULING:	That a parole release date be fixed pursuant to s 160B(3) of the *Penalties and Sentences Act 1992*.
CATCHWORDS:	CRIMINAL LAW – PAROLE – where the defendant had been released on parole – where the offender was to be sentenced for offences committed after suspension of parole – where prior to sentence he had served his entire liability under his previous period of imprisonment – whether the Court was required to fix a parole release date or parole eligibility date
LEGISLATION:	Corrective Services Act 2006 ss 108, 112, 194, 199, 200, 205, 206, 208B, 209, 210, 211, 214, 215 Justice and Other Legislation Amendment Act 2004 s 79 Penalties and Sentences Act 1992 ss 154, 155, 156, 156A, 158, 159A, 160, 160A, 160B, 160C, 160D, 160E, 160F, 160G
CASES:	Chevathen v Queensland Police Service [2016] QDC 270. Rule v Commissioner of Police [2016] QDC 64 R v Braeckmans [2022] QCA 25 R v Nagy [2004] 1 Qd R 63 R v Pepper (1999) 104 A Crim R 135 R v Smith [2015] 1 Qd R 323 R v Wilson [2022] QCA 18
COUNSEL:	Stark, A.Q for the Crown Dixon, M.P for the defendant
SOLICITORS:	Director of Public Prosecutions for the Crown Legal Aid Queensland for the defendant