Verhoog v Gretschmal

[2008] QDC 56

[2008] QDC 56

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE RACKEMANN

Appeal No D1599 of 2007

KEITH ANDREW VERHOOG	Appellant
and
JOE ANDREW GRETSCHMAL	Respondent
BRISBANE ..DATE 11/02/2008

ORDER
HIS HONOUR: This is an appeal against a sentence imposed by a

1

Magistrate on the 16th of May 2007, when the appellant pleaded guilty to 19 offences.

The offences were grouped, for the purposes of submissions,

into two groups: there were two offences that related to an	10
incident which occurred at a K-Mart store when a home theatre
was taken from the store without payment and then returned for
refund; the other offences were referred to as the "unlawful
use" offences in the transcript, although not each of them is
in fact for unlawful use, but they relate, in the main, to the	20
appellant's conduct in relation to a car yard.
The circumstances of those offences are set out in the
transcript. There is no real need in this case for me to
repeat the content of them. It is not a matter which is	30
controversial. What is controversial is the sentence and most particularly, the way in the which the learned Magistrate dealt with matters of the pre-sentence custody and the setting of the parole release date.
40
On the hearing before the learned Magistrate, the
representative for the defendant, now appellant, had submitted
a head sentence of one to two years would be the appropriate
range. The learned Magistrate ultimately determined to impose
a head sentence of two years, which in my view was clearly	50

within an appropriate range.
The learned Magistrate then went on to acknowledge the time of 2 ORDER 60

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197 days, or approximately six months, of pre-sentence
custody, but decided not to declare that time as time already
served pursuant to the sentence, but rather to take it into
account in relation to setting the parole release date. That

is an option which was available to the learned Magistrate and	10
one which is understandable in the circumstances of the case at hand.
The transcript makes it clear that the appellant himself saw
the need for his supervision to the greatest extent possible.	20
At page 15 of the transcript Mr Fenton said that one of the first things the appellant had said to him was "I need supervision. I need that. I need to be supervised..."
In light of that, Mr Fenton had submitted that the Magistrate	30
should structure a sentence so that his client got extended
supervision on parole to prevent his re-offending. In those
circumstances the structuring of a sentence which took account of the time of pre-sentence custody, not by declaring it to be time already served, but by setting an earlier parole release	40
date was an understandable way to structure a sentence.
In doing so however, his Honour set a parole release date of
the 16th of August 2008, which was some 15 months after the
date of sentencing, which was the 16th of May 2007. If one	50

has regard to the six months of pre-sentence custody, this
means that, in effect, the learned Magistrate was imposing a
non-parole period of 21 months on the head sentence of two 3 ORDER 60

1

years.

It was submitted, on behalf of the respondent, that one should
instead view the sentence as if it were in effect two and a-

half years, since that is the total time that would be spent	10
in prison if the appellant served the whole of the two years' imprisonment plus the pre-sentence custody. But even so, the decision of the learned Magistrate results in 21 months non-
parole period in a sentence of 30 months. In my view, having
regard to the matters in the appellant's favour, including his	20
early pleas of guilty, that sentence is manifestly excessive.
That calls upon me to re-exercise the sentencing discretion. The appellant contends for the same head sentence, being two years. The solicitor who appeared for the appellant today	30
conceded that a similar structure, that is one which takes account of the pre-sentence custody without declaring it is something which could be appropriate in the circumstances.
The parole release date contended for the by appellant is the	40
16th of February 2008 and I am prepared to accede to that
request. Accordingly, I allow the appeal and the sentence
below will be varied such that the parole release date is the
16th of February 2008 in lieu of the 16th of August 2008.
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