Witness “J” v Callanan - [2014] QSC 31

SUPREME COURT OF QUEENSLAND

CITATION:

Witness “J” v Callanan [2014] QSC 31

PARTIES:

WITNESS “J”
(applicant)

v

CALLANAN
(respondent)

FILE NO/S:

SC No 11113 of 2013

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

24 February 2014

DELIVERED AT:

Brisbane

HEARING DATE:

24 February 2014

JUDGE:

Dalton J

ORDER:

1. Vacate that part of order made on 19/11/2013 imposing a sentence of 5 months imprisonment.

2. Substitute an order imposing a sentence of 30 days imprisonment.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – HARDSHIP – TO OFFENDER – OTHER FACTORS - CIRCUMSTANCES OR CONDITIONS OF IMPRISONMENT – where facts arise after order - whether harsh conditions of imprisonment and solitary confinement are material to the length of imprisonment imposed

PROCEDURE – SUPREME COURT PROCEDURE –QUEENSLAND – UNIFORM CIVIL PROCEDURE RULES – JUDGMENTS AND ORDERS – AMENDING VARYING AND SETTING ASIDE - where the prisoner is subject to conditions once incarcerated which were raised in sentencing hearing – whether the prisoner is “entitled” to appropriate relief within the meaning of rule 668(1) of the Uniform Civil Procedure Rules 1999

COUNSEL:

MJ Copley QC for the respondent

SOLICITORS:

Gatenby Criminal Lawyers for the Applicant
Crime and Misconduct Commission for the Respondent

HER HONOUR: On 19 November 2013 an application to punish for contempt pursuant to section 199 of the CMC Act 2001 came before me in the applications list. The contempt was admitted and both sides asked for the sentence to be dealt with that day. I imposed a sentence of five months imprisonment for the contempt. Neither side made reference to the conditions to which the man I sentenced would be subject once incarcerated.

On 12 December 2013 Applegarth J published the decisions in Attendee X, Attendee Y and Attendee Z [2013] QSC 340, 341 and 342 respectively. These were decisions on applications to punish for contempt pursuant to section 199. Applegarth J sentenced X to 28 days, Y to 28 days and Z to 42 days imprisonment. Applegarth J considered the facts in X, Y and Z to be comparable to the facts before me on 19 November 2013 – X, paragraph 17; Y, paragraph 17 and Z, paragraph 16. He indicated that he would have imposed a similar sentence to the sentence I imposed had it been expected that the sentence would have been served in normal prison conditions. However, Applegarth J reduced the sentence in X, Y and Z to account for the fact that the sentences would be served by attendees X, Y and Z under a regime which was unusually harsh. It is described at paragraph 28 in the decision of X, 28 in the decision of Y and 27 in the decision of Z. A description of the regime was contained in a document in evidence before Applegarth J called “Southern Queensland Corrective Centre Detention Unit Management” dated 29 October 2013: see paragraphs 28 of decision X and Y and 27 of decision Z. Having regard…

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.

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Details

Case: [2014] QSC 31
Decision Date: 24 February 2014

CaseChat Overview and Summary

The case of Witness “J” v Callanan dealt with the sentencing of an individual in Queensland. The appellant, referred to as Witness “J”, challenged the conditions of imprisonment he was subject to after his initial sentencing, arguing that the harsh conditions and solitary confinement were not adequately considered when the original sentence was imposed. The matter was brought before the Supreme Court of Queensland, which was tasked with determining whether the post-sentencing conditions warranted a re-evaluation of the sentence length.

The court had to consider two primary legal issues: whether the hardship experienced by the offender due to the harsh conditions of imprisonment and solitary confinement, which arose after the original sentencing, were material factors that should have influenced the length of the sentence; and whether the prisoner was entitled to appropriate relief under rule 668(1) of the Uniform Civil Procedure Rules 1999. This rule pertains to the circumstances in which a prisoner may seek to amend, vary, or set aside an order made in their case.

The Supreme Court found that the post-sentencing conditions of imprisonment and solitary confinement were indeed material factors that should have been considered during the original sentencing. The court concluded that the original sentence did not sufficiently account for the hardship that Witness “J” would face in these conditions. Consequently, the court substituted the original sentence of five months imprisonment with a new sentence of 30 days imprisonment, recognising the inappropriateness of the original sentence in light of the subsequent conditions of imprisonment. This decision underscored the importance of considering all relevant factors, including those that arise post-sentencing, in determining the appropriate length of a prison sentence.

Orders

Orders of the court

1. Vacate that part of order made on 19/11/2013 imposing a sentence of 5 months imprisonment.

2. Substitute an order imposing a sentence of 30 days imprisonment.

Background

Background to the litigation

Full text does not contain this section.

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:	Witness “J” v Callanan [2014] QSC 31
PARTIES:	WITNESS “J” (applicant) v CALLANAN (respondent)
FILE NO/S:	SC No 11113 of 2013
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	24 February 2014
DELIVERED AT:	Brisbane
HEARING DATE:	24 February 2014
JUDGE:	Dalton J
ORDER:	1. Vacate that part of order made on 19/11/2013 imposing a sentence of 5 months imprisonment. 2. Substitute an order imposing a sentence of 30 days imprisonment.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – HARDSHIP – TO OFFENDER – OTHER FACTORS - CIRCUMSTANCES OR CONDITIONS OF IMPRISONMENT – where facts arise after order - whether harsh conditions of imprisonment and solitary confinement are material to the length of imprisonment imposed PROCEDURE – SUPREME COURT PROCEDURE –QUEENSLAND – UNIFORM CIVIL PROCEDURE RULES – JUDGMENTS AND ORDERS – AMENDING VARYING AND SETTING ASIDE - where the prisoner is subject to conditions once incarcerated which were raised in sentencing hearing – whether the prisoner is “entitled” to appropriate relief within the meaning of rule 668(1) of the Uniform Civil Procedure Rules 1999
COUNSEL:	MJ Copley QC for the respondent
SOLICITORS:	Gatenby Criminal Lawyers for the Applicant Crime and Misconduct Commission for the Respondent