Ryan v Commissioner of Police

[2010] QDC 293

NICHOLAS WILLIAM RYAN	Appellant
and
COMMISSIONER OF POLICE	Respondent
..DATE 16/07/2010 ORDER

[2010] QDC 293

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE BRITTON SC

ROCKHAMPTON sentences imposed upon him at the Magistrates Court, Rockhampton, on the 12th of January 2009. On that occasion, he pleaded guilty to one charge of assault occasioning bodily harm whilst armed, 21 charges of entering premises and committing an indictable offence, four charges of stealing, one charge of entering a dwelling and committing an indictable offence, two charges of receiving stolen property, two charges of assaulting and obstructing a police officer and one charge of possession of tainted property.

In respect of the assault occasioning bodily harm whilst armed, he was sentenced to three years' imprisonment, and the parole release date was set as at the 11th of January 2012, being the last day of the sentence.

In respect of the other offences other than the two charges of assaulting or obstructing police and possession of tainted property, he was sentenced to two and a-half years' imprisonment, and no parole release date was set in respect of that sentence, as the sentence did not extend beyond the other sentence order.

In respect of the remaining matters, fines were imposed and referred to SPER, and no complaint is made about those sentences.

The appellant's argument is that in setting the parole release date as at the last day of the head sentence of three years' imprisonment, the Magistrate erred. It is argued that she failed to take into account the mitigating factors, including the appellant's timely pleas of guilty, his cooperation in making full admissions in police interviews, and that at the time of commission of the offences, he was labouring under a drug and alcohol addiction. 2 ORDER

Further, the Magistrate failed to make a declaration in
respect of time served in presentence custody. The appellant
had served 22 days in presentence custody between the 22nd of
December 2008 and the date of sentence, the 12th of January
2009.

The Magistrate, in her decision, did not express any reasons for failing to order that the appellant be released on parole earlier than the last day of the sentence. By not making a declaration in respect of the presentence custody, the appellant was, in fact, sentenced to more than the maximum allowable sentence in respect of the offence of assault occasioning bodily harm whilst armed. The maximum the Magistrate was entitled to impose was three years' imprisonment.

On behalf of the respondent, the appeal is conceded. The parole release date at a time earlier than the last day of the head sentence of three years. I am also satisfied that the Magistrate erred in failing to make a declaration in respect of the presentence custody. 3 ORDER

effect of the orders made by the Magistrate is that the
appellant has received no benefit for the mitigating factors
that I referred to earlier. No complaint is made on behalf of
the appellant about the fact that the maximum sentence was
imposed in respect of the offence. This is having regard to
the serious nature of the appellant's criminal history, and
also, the seriousness of the offences themselves.

It is argued, on behalf of the appellant, that I should set aside the order of the Magistrate in relation to the parole release date, and order that he be released on parole as of today. That means that he will, in fact, have served in

excess of 50 per cent of the head sentence of three years.

So I propose to allow the appeal, and the orders are:

1. That the appeal be allowed.

2.  I set aside so much of the order of the Magistrates Court whereby the parole release date was set at the 11th of January 2012.

3.  I set the parole release date as at today, the 16th of July 2010.

4.  I order that the appellant report to the Probation and Parole office between the hours of 9 a.m. and 5 p.m. today, or between 9 a.m. and 5 p.m. Monday, the 19th of July 2010.

5. I declare that the appellant has been held in presentence

4   ORDER

custody for a period of 22 days from the 22nd of December
2009 to the 12th of January 2009, which is imprisonment

already served under these orders.

…

HIS HONOUR: So Mr Ryan, what I am doing is I am allowing your
appeal. I am ordering that you be released on parole as of
today. Now, that means that when you are released, you'll be
subject to the conditions of Court-ordered parole, and you are
required to report to the Probation and Parole office by
5 p.m. today, or if that's not possible, between 9 a.m. and

5 p.m. on Monday; do you understand that?

DEFENDANT: Yes, your Honour. Yep.

HIS HONOUR: If you do not report by 5 p.m. on Monday, then you will be regarded as being unlawfully at large, and you'll be arrested and you'll be taken back to the prison.

DEFENDANT: Yes, your Honour.

HIS HONOUR: And you'll serve the remainder of your sentence, or until such time as the Parole office determines otherwise; do you understand that?

DEFENDANT: Yes, your Honour. Yep.

HIS HONOUR: And you will, of course, then remain subject to the other conditions of the parole order until the 11th of January 2012, and again, if you breach any of those conditions, you'll be taken back to the prison, and you'll serve the remainder of the sentence; do you understand that?	5	ORDER
DEFENDANT: Yes, your Honour.
…

HIS HONOUR: I vacate the order that I made in respect of presentence custody and make the following order: I declare that he's been held in presentence custody for a period of 22 days from 22nd December '08 to 12 January '09, which is imprisonment already served under these orders.

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6   ORDER