R v Weiss[2001] QCA 373

COURT OF APPEAL

DAVIES JA

WILLIAMS JA

WILSON J

CA No 195 of 2001

THE QUEEN

v.

PETER BRIAN WEISSApplicant

BRISBANE

DATE 10/09/2001

JUDGMENT

DAVIES JA:  I will ask Justice Wilson to deliver her reasons first.

WILSON J:  On 14 March 2000 the applicant was sentenced in the District Court at Southport for a series of Commonwealth and State offences of dishonesty.  On 4 July 2000 the Court of Appeal set aside the sentences and imposed other sentences. 

In summary the sentences imposed by the Court of Appeal were these.

There were 60 Commonwealth offences involving a total of $142,000.  They were 43 counts of imposition, two counts of attempted imposition, one count of forgery, one count of uttering, seven counts of obtaining a bank account in a false name and six counts of operating a bank account in a false name.  For each of these the Court of Appeal imposed two years imprisonment, the sentences to be served concurrently and to commence on 14 March 2000. 

There were 16 State offences involving $138,000 namely four counts of misappropriation with a circumstance of aggravation, eight counts of misappropriation, three counts of false pretences and one count of a wilfully false promise. 

With respect to the four counts of misappropriation with circumstances of aggravation the Court of Appeal imposed six years and with respect to all other counts two years. 

The sentences for the State offences were to be served concurrently and to commence on 14 March 2000.  The sentences for all Commonwealth and State offences were to be served concurrently.

With respect to the State offences the Court of Appeal recommended eligibility for parole after two and a half years.  Thus the head sentence on the most serious of the State offences was six years with a recommendation after two and a half years. 

The applicant seeks a re-opening of the sentences pursuant to section 188 subsection (i) paragraph (c) of The Penalties and Sentences Act 1992.  The Court may re-open the sentence if it was "decided on a clear factual error of substance".

Pursuant to section 188 subsection 5 paragraph (b) of the Penalties and Sentences Act such an application must be made within 28 days after the sentence was imposed or within such further time as the Court may allow.  The present application has been made well outside the 28 days but I would allow an extension of time if it had prospects of success.  

The applicant submits:

"The Court imposed a sentence whilst being under a mistaken impression on a clear factual error of substance in that the sentence contained a reasonable expectation at the time of sentencing that the applicant would be entitled to remissions in terms of the former regulations of the Corrective Services Regulations 1988 and that the applicant would receive community based orders on or about the dates advised to him by the Department of Corrective Services and that these formed part of the sentence imposed on the applicant."

Shortly after the Court of Appeal gave its decision on his appeal against sentence the applicant was given dates indicative of his future progression through the correctional system.  These included:

14 September 2001 release to work

14 May 2002 home detention

14 September 2002 parole

19 March 2004 remitted release

23 March 2006 full time release

On 24 November 2000 section 207B of the Corrective Services Act 1988 came into force.  It removed the applicant's eligibility for remission in the event that before or after the commencement of the section he was granted release to work, release to home detention or parole.

Section 75 of the Corrective Services Act 2000 which came into force on 1 July 2001 provides that a prisoner serving a term of imprisonment for an offence committed before the commencement of the section is not eligible for remissions if during the period of imprisonment he has been granted release to work under the 1988 Act, release to home detention under the 1988 Act, parole under the 1988 Act or a post-prison community-based release order under the 2000 Act.

Section 135 standardises the point at which a prisoner becomes eligible for consideration for all forms of community-based orders.  That point is now the halfway point in the term of imprisonment.  Under the previous legislative regime a prisoner was eligible for work release and also for home detention prior to the date at which he became eligible for parole.

The applicant's concern at the effects of these changes is perfectly understandable. 

However, his case is unlike MacKenzie [2000] QCA 234 where the prisoner's application to re-open her sentence was successful.  There the Court of Appeal at the time of substituting a fresh sentence made a factual error in not appreciating that the security points rating and other considerations then applying meant that the Corrections Board could not implement the Court's recommendation as to eligibility for parole. 

When the Court of Appeal substituted fresh sentences in the case of the present applicant it did not labour under any factual misapprehension as to the way in which the applicant might progress through the corrections system towards release into the community.  However legislative changes that have occurred since the sentences were handed down have altered that likely progression. 

Those changes cannot be construed as a factual error by the sentencing Court at the time of sentencing.  Similarly, the fact that legislative changes were under consideration by Parliament at the time of the Court of Appeal's decision cannot constitute a factual error at the time of sentencing.  (See the Court of Appeal's decision in The Queen v. Kelly [2001] QCA 292 at paragraph 15.)

In the circumstances the application must be dismissed.

DAVIES JA:  I agree.

WILLIAMS JA:  I agree.

DAVIES JA:  The application is dismissed.