The Queen v Grogin[1998] QCA 361

COURT OF APPEAL

McPHERSON JA

AMBROSE J

BYRNE J

CA No 198 of 1998

CA No 233 of 1998

THE QUEEN

v.

RUSSELL JAMES GROGIN Applicant/Appellant

BRISBANE

DATE 27/08/98

JUDGMENT

BYRNE J: In June 1997 the applicant and others invaded the home of Mark Bennett.  Mr Bennett was severely assaulted, he was robbed, and his home was damaged. Two other men were assaulted when they arrived at the house during the incident.

As a result of his participation in these offences, the applicant was convicted on his own pleas of guilty of one charge of housebreaking, two of armed robbery in company with wounding, three of deprivation of liberty, one of armed robbery in company and another of attempted armed robbery in company.

In respect of the more serious offences, he was sentenced to six years' imprisonment with a recommendation for eligibility for parole after two years of the sentences had been served.

In respect of the balance, the sentence was three years' imprisonment with a recommendation for parole after two years.

The applicant had been in custody since shortly after the offences were committed. From 6 June 1997 until 29 August that year, a period of 84 days, he was in custody in relation to the offences which I have mentioned. After that date he was held in respect of those offences and other charges.

The sentences were imposed in the District Court at Brisbane on 27 May 1998. That is to say, approximately nine months after 29 August 1997. 

In respect of the 84 day period to 29 August 1997, the Judge declared that the time so spent in custody was imprisonment already served under the sentences. The balance of the period during which the applicant had been held in custody was also taken into account, but complaint is made about the way in which that was done.

The Judge indicated in the sentencing remarks that she was originally inclined to sentence the applicant to six and a half years' imprisonment, accompanying the sentence with a recommendation for parole after two and a half years. However, in making allowance for the time spent in custody, she decided to reduce the head sentence to six years' imprisonment and to make a recommendation for parole after two years. The sole point in this application is that the Judge took into account only six of the nine months actually spent in custody from 29 August 1997.

The sentencing remarks do not disclose why only two-thirds of the substantial time spent in pre-sentence custody was allowed for in the sentence, and there does not appear to be a satisfactory basis for that decision.

The sentence therefore requires correction to avoid what the applicant is otherwise entitled to regard as a justifiable grievance, for the proportion of the sentence for which no recognition was made was not a matter of days, but as I have said, quite substantial.

The sentence therefore requires correction. I would grant the application, allow the appeal and set aside the sentences actually imposed and in lieu thereof order that in respect of the sentences imposed for Counts 1, 2, 4 and 6 there be substituted for the sentences imposed sentences of imprisonment for five years and nine months with a recommendation for parole after 21 months.

Now Mrs Richards, there's a problem with respect to the balance of the counts because there was a recommendation for parole after two years in respect of a head sentence of three. What should we do about that?

MRS RICHARDS: That should be reduced as well, Your Honour, or at least removed is probably the tidiest way, because it's over the halfway mark, obviously. So perhaps if they were just made three years' imprisonment, full stop.

BYRNE J: I would also propose that the recommendation for parole which was made in respect of the sentences on Counts 3, 5 and 7 be set aside. The declaration with respect to the 84 days spent in pre-sentence custody should remain.

That leaves for consideration the consequential adjustment that needs to be made in respect of sentences imposed in the Southport District Court on 24 June 1998.

On 14 April 1997 the applicant had been found in a motor vehicle which had been stolen about a fortnight before. He gave a false name and said the car was his. Once the police established that the vehicle was stolen the applicant said that the car was borrowed from a friend. A ground down key was found in the vehicle, as were implements that appeared to have been used in its theft.

At the time of his sentence at the Southport District Court on 24 June 1998 the applicant was serving the sentences of imprisonment for the home invasion to which I have recently made reference. A sentence of imprisonment of six months' cumulative upon the other sentences was imposed and there was a recommendation for parole after two months. 

The applicant was 35 years of age. He had several prior convictions. It is accepted that some adjustment must be made to this sentence but all that is proposed is that it be altered to substitute a new date for eligibility of parole in the light of the orders proposed with respect to the disposition of appeal number 198 of 1998.

Therefore, in respect of the application brought as application number 233 of 1998 I would grant the application but allow the appeal only to the limited extent of substituting for the recommended parole date, the date 4 February 2000.

McPHERSON JA: Yes, I agree with the orders proposed by my brother Byrne.

AMBROSE J: Yes, I agree.

McPHERSON JA: The orders will be as Mr Justice Byrne stated them.