SUPREME COURT OF QUEENSLAND 

1. THE COURT:  The applicant, who represents himself, applies to vary his sentence under sub-ss 188(1)(c) and 188(5)(b) Penalties & Sentences Act 1992.  Those sub-sections relevantly provide:

"(1)If a court has in, or in connection with, a criminal proceeding, including a proceeding on appeal -

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3. imposed a sentence decided on a clear factual error of substance;

the court, whether or not differently constituted, may reopen the proceeding.

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5. The court may reopen the proceeding -

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2. for a reopening under subsection (1) - on the application of a party to the proceeding made within -

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2. any further time the court may allow on application at any time."

2. In order to invoke the Court's discretion, the applicant must demonstrate that this Court imposed a sentence decided on a clear factual error of substance.

3. On 24 April 1998 the applicant pleaded guilty to manslaughter and was sentenced to 12 years imprisonment with a recommendation for parole after four and a half years. The indictment notes that pre-sentence custody of 323 days was declared to be time served under the sentence. On 6 August 1998, the applicant was granted leave to appeal, his appeal was allowed and this Court substituted a sentence of nine years imprisonment with a recommendation for eligibility for parole after serving three and a half years.

4. Mackenzie J, with whom Thomas JA and Helman J agreed, noted that the applicant pleaded guilty to killing the deceased woman during the course of an argument where each pushed the other a few times. The applicant's fatal push caused the deceased to trip and hit her head on a besser block wall; she became unconscious and then died. The forensic pathologist could not reconcile the applicant's version with the injury which caused death: the deceased's skull was split through the base from ear to ear in a way which would have required application, probably on one occasion, of severe force, of a kind often seen in a motor vehicle accident; the injury was inconsistent with merely falling onto a hard surface but was consistent with the head being forced onto or impacting at great speed with a broad flat surface such as a smooth concrete floor. The deceased had ingested alcohol and drugs which may have predisposed her to injury by reducing her defence mechanisms. It was common ground that the applicant should be sentenced on the basis that severe force was required to cause the injury.

5. The applicant had prior convictions in 1975 for doing grievous bodily harm with intent by stabbing and was sentenced to 10 years imprisonment. Additionally, the applicant had been convicted of offences of dishonesty and assault occasioning bodily harm for which he received community service in 1989. He had no further convictions until his conviction for manslaughter in 1998. Mackenzie J noted that the trial judge was "entitled not to take the applicant's version of events at face value having regard to the medical evidence". Mackenzie J also noted that there was no evidence of violence in the relationship between the applicant and the deceased except on the occasion of her death. Despite the applicant's previous convictions, the court concluded "… that the sentence imposed was manifestly excessive, given the basis upon which the trial judge was forced to act, notwithstanding that he may have thought there was more to the matter than was before him."

6. The applicant's material before this Court indicates that he has behaved satisfactorily whilst serving his sentence and has completed a large number of rehabilitative courses. The applicant claims that, consistent with this Court's recommendation and his pre-sentence custody, he was eligible for parole from 5 December 2000. In early 2000 the applicant applied for home detention or parole. He deposes that on 13 December 2000, the Queensland Community Corrections Board ("the Board") advised him by letter that a psychiatric report suggested he may be an unacceptably high risk if released into the community and the Board was unwilling to currently approve his application about which no decision had been made.  The applicant made further submissions to the Board through his solicitor.  On 9 March 2001 the Board refused his application for parole.  On 15 March 2001, the Board informed the applicant's solicitor by letter:

"Despite the factors in Mr Kelly's favour, the Board's primary obligation must remain the protection of the community.  Having regard to the opinions described in the December letter, the Board has concluded that he would appear to present an unacceptably high level of risk of reoffending if released at this stage.  In view of the nature and circumstances of his previous offences, if Mr Kelly reoffends, then the consequences for the community are likely to be very serious."

7. The psychiatric report which appeared to influence the Board's decision was prepared by Dr Ian Atkinson and dated 17 April 2000. Dr Atkinson concluded:

"This man clearly suffered a conduct disorder in his early years.  This ultimately developed into a significant personality disorder which seems to have permeated his entire adult life.

He is a very anxious and fearful person and his underlying insecurities have clearly contributed to the violence in his offences. …

Although this man's general demeanour seems to have been less aggressive and impulsive over recent years and although he did not lose control under a lot of psychological pressure in the interview, I am not convinced that, at forty-four years, his personality disorder has really mellowed significantly or that his anxiety is no longer an issue. He claims to have changed direction now and to be less anxious but I noted that he could given no insightful account of how this had happened. I also noted that he was not being entirely honest with me during the interview and I observed a 'smoothness' in his presentation which is typical of antisocial personality disorders.

I cannot get away from the concept that this man has a severe personality disorder with significant underlying anxiety.  This may underlie the extreme violence perpetrated on his victim and reflected in the postmortem findings in the manslaughter case.

Theoretically, this man cannot change other than by mellowing.  The only way to determine whether this has in fact happened would be to grant him RTW (release to work) or HD (home detention) under very strict supervision.  Parole would, in my view, be extremely risky."

8. The applicant contends that when sentencing the applicant on 6 August 1998 the Court of Appeal acted under the following errors of substance:

"(a)Its recommendation made under s 157(2) Penalties & Sentences Act 1992 would not take effect until other matters applied by the correctional authorities according to various policy guidelines have been complied with.

2. Its recommendation could not be given any effect by virtue of the imposition of the Corrective Services Amendment Act 2001;

3. and thirdly, the imposition of s 207B Corrective Services Act 1988 would nullify the granting of remissions on the part of the applicant contrary to the court's original sentencing intentions."

9. The applicant's first contention is, as we understand it, that this Court acted under a clear factual error of substance when sentencing as the Court did not know the Board would have regard to Dr Atkinson's future psychiatric report in not following the Court's recommendation for parole.

10. The time for determining whether there was a clear factual error under s 188(1)(c) Penalties & Sentences Act 1992 is the time of the original sentencing proceeding sought to be reopened: R v DC^[1] and R v MacKenzie.^[2]

11. The applicant places reliance on R v MacKenzie,^[3] in which this Court re-opened a sentencing proceeding where it had earlier granted leave to appeal against sentence, allowed the appeal and substituted a sentence of five years imprisonment with a recommendation for parole after 12 months.  In imposing that sentence, the Court of Appeal acted on the assumption that the recommendation for parole was at least capable of receiving effect if MacKenzie satisfied the Board that it was appropriate to release her having regard to proper criteria and the circumstances of her case.  Because of existing facts unknown to the Court, it was impossible for the parole recommendation to be followed at the time of sentencing.  MacKenzie had no prior criminal history and nor did any subsequent psychiatric report suggest that she was a danger to an individual or the community.  The Court of Appeal re-sentenced MacKenzie to five years imprisonment suspended forthwith.

12. Section 188(1)(c) Penalties & Sentences Act 1992 does not give power to reopen simply because the recommendation is not given effect.^[4]  A recommendation for parole under s 157(2) Penalties & Sentences Act 1992 is only a recommendation; whether it is granted is a matter for the Board: see Williams v Queensland Community Corrections Board.^[5]

13. In moderating the applicant's sentence on 6 August 1998, this Court was aware that the Board may have regard to new material, such as a psychiatric report, obtained after the sentence and before the determination of the application for parole, in deciding whether the applicant should be released on parole. The Court of Appeal did not impose a sentence decided on a factual error in this respect.

14. The applicant's second contention is that the Court erred in not realising that the recommendation for parole could not be given effect because of the Corrective Services Amendment Act 2001.  That Act deals with the power to search prisoners and has no relevance to any purported factual error by the Court.  If the applicant intends to refer to the Corrective Services Act 2000, as seems likely, its provisions relevant to parole did not commence until 1 July 2001 and in any case do not apply to this case which preceded that Act: see s 76(1)(a) Corrective Services Act 2000.  The Court of Appeal did not impose a sentence decided on a factual error in this respect.

15. The applicant's final contention is that the Court erred in failing to understand that the subsequent enactment of s 207B Corrective Services Act 1988 has altered the granting of remissions to prisoners since 24 November 2000: see Benson & Ors v Chief Executive, Department of Corrective Services.^[6]  The system for the granting of remissions was irrelevant to this Court's decision on 6 August 1998.  In any case, any change to the granting of remissions has occurred since the sentence and could not be a factual error at the time of sentence: R v DC^[7] and R v MacKenzie.^[8]

16. The applicant has not demonstrated that the Court of Appeal imposed a sentence decided on a clear factual error of substance.  It follows that in our view the application should be refused.

17. Although this is sufficient to dispose of the application, it is desirable to deal with the respondent's contention that because of this Court's decision in R v Rasmussen; ex parte Attorney-General of Queensland,^[9] this application should have been brought before the original sentencing court, not the Court of Appeal.  In Rasmussen the original sentencing court referred a breach of a community based order to the Court of Appeal which had varied the original sentence.  In our view, the effect of Rasmussen is that sentences imposed by the Court of Appeal become the sentence of the primary court for the purposes of Division 2 of Part 7 (Contravention of Orders) Penalties & Sentences Act 1992.^[10]  By contrast, s 188 is contained in Part III of that Act (General).  If the respondent's contention were correct, a judge of the Trial Division, a judge of the District Court or a magistrate would be called upon to determine whether the Court of Appeal had "imposed a sentence decided on a clear factual error of substance".  Section 188 allows courts to re-open criminal proceedings in defined circumstances and plainly states that "a criminal proceeding includes a proceeding on appeal".  These words strongly suggest the legislature intended that the Court of Appeal, like other courts, has power to re-open proceedings where it has imposed a sentence, which by inference includes a substituted or varied sentence, decided on a clear factual error of substance.  This was the procedure adopted in MacKenzie.  In our view, the application, although misconceived, was correctly brought before this Court.

18. For the reasons we have given, we would refuse the application to reopen the sentencing proceedings.

ORDER:

Application to reopen the sentencing proceedings refused.