The Queen v Bealing[1997] QCA 48

COURT OF APPEAL

FITZGERALD P

McPHERSON JA

DERRINGTON J

CA No 542 of 1996

THE QUEEN

v.

DARREN JAMES BEALING

BRISBANE

DATE 03/03/97

JUDGMENT

THE PRESIDENT:  This is an application for an extension of time within which to apply for leave to appeal against a sentence imposed in the Magistrates Court at Beenleigh on 15 October 1996.  The offence occurred on 21 August 1995 and was an offence of dangerous driving with a circumstance of aggravation. 

The applicant was convicted and sentenced for imprisonment for three months, to be served concurrently with other sentences which he was then serving and he was disqualified from holding or obtaining a driving licence for a period of 18 months.  At the same time the applicant was convicted of two breaches of the Bail Act, one on 15 June 1996 and the other on 13 September 1996.  In respect of the first he was sentenced to imprisonment for two months and in respect of the second to imprisonment for four months, each of which was to be cumulative upon the sentences of imprisonment which he was already serving.  He had been sentenced in the District Court on 2 October 1996 in relation to two offences, one of break and enter and one of stealing, and sentenced to imprisonment for 12 months with a recommendation for parole after five months. 

The Magistrate was required, under section 157 of the Penalties and Sentences Act 1992, to impose periods after which the applicant would be eligible to be considered for parole in respect of the three offences for which he sentenced the applicant on 15 October 1996.  And it seems clear enough, although it is not expressly stated and indeed has effectively been conceded by counsel for the applicant and for the prosecution, that what the Magistrate intended was that the applicant should be eligible for consideration for release on parole two months after the date when he would otherwise have been eligible for release in accordance with the recommendation in the District Court that he be eligible for parole after five months.  Unfortunately, however, the Magistrate dealt with this matter in a manner which was inconsistent with section 157 of the Penalties and Sentences Act and instead of confining himself to language which indicated clearly he intended that a further two months imprisonment be served before the applicant became eligible for parole, he added a recommendation that the applicant be eligible for release on parole after seven months. 

In the circumstances, there was little practical consequence to the error but it is one which should be corrected in this Court and I would therefore grant the application for an extension of time and also the application for leave to appeal against sentence and allow the appeal only to the extent that the recommendation for parole made by the Magistrate should be set aside and, in lieu, it should be ordered that the applicant be eligible for release on parole in respect of the offences for which he was sentenced by the Magistrate two months after he would otherwise have been eligible for parole in accordance with the sentences imposed in the District Court on 2 October 1996.

Because of the unsatisfactory state of the legislation, this Court can only deal with the application for leave to appeal against sentence formally in so far as it relates to the conviction for dangerous driving with a circumstance of aggravation, and the applicant has appealed to the District Court in respect of the sentences imposed in relation to the breaches of the Bail Act.  This Court cannot formally deal with the latter applications but makes it clear that it intends that the period of two months in addition to the period of five months before the applicant is eligible for release on parole is intended to apply to all offences for which the applicant was sentenced on 15 October 1996.

McPHERSON JA:  I agree.

DERRINGTON J:  I agree.

THE PRESIDENT:  The orders will be as I have indicated.