The Queen v Hall - [2018] QSC 101

SUPREME COURT OF QUEENSLAND

CITATION:

The Queen v Hall [2018] QSC 101

PARTIES:

THE QUEEN
v
GRAHAM WILLIAM McKENZIE HALL
(defendant)

FILE NO:

Indictment No 0348/18

DIVISION:

Trial

PROCEEDING:

Ruling at sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 May 2018

DELIVERED AT:

Brisbane

HEARING DATE:

11 May 2018

JUDGE:

Dalton J

RULING:

Section 160B(2) of the Penalties and Sentences Act 1992 applies in this case

CATCHWORDS:

CRIMINAL LAW – SENTENCE – POST-CUSTODIAL ORDERS – PAROLE – OTHER MATTERS – where the defendant committed an offence whilst on parole – where s 160B of the Penalties and Sentences Act 1992 (Qld) requires the Court to fix a parole eligibility date when the offender has a Court ordered parole order cancelled under s 209 of the Corrective Services Act 2006 (Qld) during the offender’s period of imprisonment – whether the term of imprisonment passed on the second sentencing occasion constitutes part of an ‘unbroken period of imprisonment’ within the meaning of s 4 of the Penalties and Sentences Act 1992 (Qld) – whether the Court was obliged to fix a parole eligibility date

COUNSEL:

E O’Hanlon-Rose for the Crown

K McArthur for the defendant

SOLICITORS:

The Office of the Director of Public Prosecutions for the Crown

Karsas Lawyers for the defendant

A point arose during the sentencing of this offender as to the effect of my imposing a sentence for an offence committed whilst he was on parole. Defence counsel contended that I was not obliged to fix a parole eligibility date, but could fix a parole release date. The point is troublesome partly because of the language of the Penalties and Sentences Act 1992 (PSA) and also partly because of some paragraphs at the end of the judgment in R v Smith.[1]These paragraphs are inconsistent with the later decision of the Court of Appeal in R v Bliss.[2]It appears that there is some diversity in the interpretation of Smith, at least in the District Court (see below). For this reason, having reserved my decision on this point I think it is worthwhile to publish it. My conclusion is that s 160B(2) of the PSA does require me to fix a parole eligibility date.
[1] [2013] QCA 397.
[2] [2015] QCA 53.
Facts of this Case
On 11 March 2016 Mr Hall was sentenced by a Magistrate to a period of imprisonment with early release on parole. His full-time release date on that sentence was 4 December 2016. He was released on parole and on 19 September 2016 committed an offence for which I was to sentence him.
Slightly complicating matters, because Mr Hall is a recidivist offender, he committed further offences, and on 24 November 2016 the Parole Board revoked his parole and returned him to jail to serve the last part of the Magistrate’s March 2016 sentence (between 24 November 2016 and 4 December 2016). He was then released.
On 11 May 2018 he pled guilty before me to:
(a)the offending of…

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 The Queen v Hall

Details

AGLC: The Queen v Hall [2018] QSC 101
Case: [2018] QSC 101
Decision Date: 18 May 2018

CaseChat Overview and Summary

In the case of The Queen v Hall, the defendant was sentenced for various offences committed while on parole, including reoffending after his parole was revoked. The central issue before the court was whether, in sentencing the defendant for these offences, the court was required to fix a parole eligibility date under s 160B(2) of the Penalties and Sentences Act 1992 (Qld), or if it had the discretion to fix a parole release date. This issue arose due to the ambiguity in the relevant statutory provisions and conflicting interpretations of previous cases. The court needed to determine whether the term of imprisonment imposed for the reoffending constituted part of an 'unbroken period of imprisonment' within the meaning of s 4 of the Penalties and Sentences Act 1992 (Qld).

The court held that s 160B(2) of the Penalties and Sentences Act 1992 (Qld) indeed required the court to fix a parole eligibility date. The reasoning was based on the plain language of the statute, which mandates that if an offender has had a court-ordered parole order cancelled under the Corrective Services Act 2006 during their period of imprisonment, the court must set the date the offender is eligible for parole. The court also noted the definition of 'period of imprisonment' in s 4 of the Penalties and Sentences Act 1992 (Qld), which includes the term of imprisonment. Given that the term of imprisonment for the reoffending was part of the period of imprisonment that the offender was to serve, the court concluded that it was obliged to fix a parole eligibility date.

The court's decision clarified the legal obligations of sentencing courts in similar circumstances and resolved the ambiguity surrounding the interpretation of s 160B(2) of the Penalties and Sentences Act 1992 (Qld). By mandating the fixing of a parole eligibility date, the court ensured consistency in the application of parole laws and provided guidance to lower courts dealing with similar issues. The decision underscored the importance of adhering to statutory mandates when sentencing offenders who have had their parole revoked during their imprisonment.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

A point arose during the sentencing of this offender as to the effect of my imposing a sentence for an offence committed whilst he was on parole. Defence counsel contended that I was not obliged to fix a parole eligibility date, but could fix a parole release date. The point is troublesome partly because of the language of the Penalties and Sentences Act 1992 (PSA) and also partly because of some paragraphs at the end of the judgment in R v Smith.[1]These paragraphs are inconsistent with the later decision of the Court of Appeal in R v Bliss.[2]It appears that there is some diversity in the interpretation of Smith, at least in the District Court (see below). For this reason, having reserved my decision on this point I think it is worthwhile to publish it. My conclusion is that s 160B(2) of the PSA does require me to fix a parole eligibility date.[1] [2013] QCA 397.[2] [2015] QCA 53.Facts of this Case On 11 March 2016 Mr Hall was sentenced by a Magistrate to a period of imprisonment with early release on parole. His full-time release date on that sentence was 4 December 2016. He was released on parole and on 19 September 2016 committed an offence for which I was to sentence him. Slightly complicating matters, because Mr Hall is a recidivist offender, he committed further offences, and on 24 November 2016 the Parole Board revoked his parole and returned him to jail to serve the last part of the Magistrate’s March 2016 sentence (between 24 November 2016 and 4 December 2016). He was then released. On 11 May 2018 he pled guilty before me to:(a)the offending of 19 September 2016, committed while he was on parole;(b)trafficking between 2 October 2016 and 22 December 2016. This offending began while he was on parole. Apprehension caused authorities to revoke his parole and return him to jail. Undeterred, he resumed trafficking when he was released, and(c)offending between 17 and 21 December 2016. Defence counsel’s submission was that in sentencing Mr Hall I could fix a parole release date and was not compelled by s 160B(2) of the PSA to fix a parole eligibility date. Section 160B(2) of the PSA provides:“If the offender has had a court ordered parole order cancelled under the Corrective Services Act 2006, section 205 or 209 during the offender’s period of imprisonment, the court must fix the date the offender is eligible for parole.” (my underlining) For this subsection, s 160 of the PSA provides that:“Period of imprisonment means the period of imprisonment that includes the term of imprisonment mentioned in section 160A.” The term mentioned in s 160A is the term of imprisonment which I impose as the sentencing Judge for the offending between 19 September 2016 and 21 December 2016. More generally, “period of imprisonment” is defined by s 4 of the PSA as meaning:“The unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment, whether – (a) ordered to be served concurrently or cumulatively; or(b) imposed at the same time or different times,and includes a term of imprisonment.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	The Queen v Hall [2018] QSC 101
PARTIES:	THE QUEEN v GRAHAM WILLIAM McKENZIE HALL (defendant)
FILE NO:	Indictment No 0348/18
DIVISION:	Trial
PROCEEDING:	Ruling at sentence
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 May 2018
DELIVERED AT:	Brisbane
HEARING DATE:	11 May 2018
JUDGE:	Dalton J
RULING:	Section 160B(2) of the Penalties and Sentences Act 1992 applies in this case
CATCHWORDS:	CRIMINAL LAW – SENTENCE – POST-CUSTODIAL ORDERS – PAROLE – OTHER MATTERS – where the defendant committed an offence whilst on parole – where s 160B of the Penalties and Sentences Act 1992 (Qld) requires the Court to fix a parole eligibility date when the offender has a Court ordered parole order cancelled under s 209 of the Corrective Services Act 2006 (Qld) during the offender’s period of imprisonment – whether the term of imprisonment passed on the second sentencing occasion constitutes part of an ‘unbroken period of imprisonment’ within the meaning of s 4 of the Penalties and Sentences Act 1992 (Qld) – whether the Court was obliged to fix a parole eligibility date
COUNSEL:	E O’Hanlon-Rose for the Crown K McArthur for the defendant
SOLICITORS:	The Office of the Director of Public Prosecutions for the Crown Karsas Lawyers for the defendant