The Queen v Cherry

Case [2014] QSC 58

SUPREME COURT OF QUEENSLAND

CITATION: The Queen v Cherry [2014] QSC 58
PARTIES:

THE QUEEN
V

RODNEY MICHAEL CHERRY

(Applicant)
FILE NO/S: 235/2002
DIVISION: Trial Division
PROCEEDING: Application
ORIGINATING COURT: Supreme Court Rockhampton
DELIVERED ON: 2 April 2014
DELIVERED AT: Rockhampton
HEARING DATE: 27 March 2014
JUDGE: McMeekin J
ORDER:

Leave to extend time to file the application 1.   

The application is dismissed. 2.   
CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – SENTENCING ORDERS – CUSTODIAL ORDERS – LIFE SENTENCE – REDETERMINATION OR SETTING OF MINIMUM TERM OR NON-PAROLE PERIOD – where the applicant seeks to reopen sentence – where at the time of sentence pre-sentence custody existed that was unable to be declared due to outstanding charges – where outstanding charges were later dismissed – whether the time served in pre-sentence custody should now be declared as time served under the sentence.
Penalties and Sentences Act 1992 (Qld) s 188
Criminal Code Act 1899 (Qld) s 305

R v Ainsworth [2000] QCA 163 cited
R v Blake (1995) 2 Qd R 167 cited
R v Cannon [2005] QCA 41 distinguished
R v Cassar, ex parte Attorney-General [2002] 1 Qd R 386 applied
R v Daly [2004] QCA 385 distinguished
R v Fabre [2008] QCA 386 cited
R v Fox [1998] QCA 121 cited
R v Hart [2006] QCA 39 distinguished
R v Heginbotham [2009] 2 Qd R 345 distinguished
R v MacKenzie [2002] 1 Qd R 410 distinguished
R v Lace [2002] QCA 205 cited
R v Massey [2002] QCA 312 applied
R v Maxfield [2000] QCA 320 distinguished
R v Skedgwell [1999] 2 Qd R 97 cited
R v Smithers [2006] QSC 396 cited
COUNSEL: K Hillard for the Applicant
J Phillips for the Respondent
SOLICITORS: Fisher Dore Lawyers for the Applicant
Department of Public Prosecution for the Crown

  1. McMeekin J: This is an application to reopen the sentence imposed on the applicant, Rodney Michael Cherry, by Dutney J on 8 November 2002.

  1. The application is brought pursuant to s 188 of the Penalties and Sentences Act 1992 (“the Act”) which provides:

188 Court may reopen sentencing proceedings
(1) If a court has in, or in connection with, a criminal proceeding, including a proceeding on appeal—

(a) imposed a sentence that is not in accordance with the law; or
(b) failed to impose a sentence that the court legally should have imposed; or
(c) imposed a sentence decided on a clear factual error of substance; or
(d) failed to fix a date for the offender to be released on parole as required under part 9, division 3;

the court, whether or not differently constituted, may reopen the proceeding.
…
(5) The court may reopen the proceeding—

(a) on its own initiative at any time; or
(b) for a reopening under subsection (1)—on the application of a party to the proceeding made within—

(i) 28 days after the day the sentence was imposed; or
(ii) any further time the court may allow on application at any time;…

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The Queen v Cherry [2014] QSC 58
Case
[2014] QSC 58
Decision Date

CaseChat Overview and Summary

The case of The Queen versus Cherry involves a defendant who had been sentenced to a custodial term and was seeking a redetermination of the minimum term or non-parole period of their sentence. The defendant's application for redetermination was based on the fact that at the time of sentencing, they had been in pre-sentence custody, but this time could not be declared as part of their sentence due to outstanding charges against them. These charges were subsequently dismissed, prompting the defendant to argue that the time served in pre-sentence custody should now be declared as time served under the sentence. The matter was heard and determined in the relevant court.

The primary legal issue before the court was whether the time spent in pre-sentence custody, which could not initially be declared due to outstanding charges, should now be declared as part of the defendant's sentence following the dismissal of those charges. This required the court to consider the principles and precedents governing the declaration of pre-sentence custody time in relation to a custodial sentence, as well as the circumstances of the case and the effect of the dismissal of the outstanding charges.

The court considered the relevant legislative provisions and legal authorities on the issue. It found that the principles established in previous cases indicated that pre-sentence custody time cannot be declared as part of a sentence if there are outstanding charges that could result in a custodial sentence. However, once those charges are dismissed and no custodial sentence is imposed in relation to them, the court may consider whether the time should be declared as part of the sentence. In this instance, the court determined that the dismissal of the charges did not alter the fundamental nature of the defendant's sentence and the time spent in custody. Consequently, the court dismissed the application for redetermination of the sentence.

The court's decision was that the application was dismissed, and leave to extend the time to file the application was not granted. This outcome means that the defendant's application for the redetermination of their sentence, based on the time spent in pre-sentence custody following the dismissal of outstanding charges, was not successful.

Orders

Orders of the court

Leave to extend time to file the application 1.

The application is dismissed. 2.

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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