R v Sinden
[2004] QCA 165
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- Unreported Judgment
- Appeal Determined (QCA)
- R v Sinden[2004] QCA 165
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R v Sinden[2004] QCA 165
R v Sinden[2004] QCA 165
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Application for Reopening (Criminal) |
ORIGINATING COURT: | |
DELIVERED EX TEMPORE ON: | 17 May 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 May 2004 |
JUDGES: | McMurdo P and Chesterman and Atkinson JJ |
ORDER: | The Court declares that the period of time during which the applicant was in custody pending the determination of his appeal from 22 June 2000 to 2 October 200, a period of 94 days, is to count as time served under the sentence of imprisonment of seven years which he was ordered to serve on 26 May 2000. |
CATCHWORDS: | CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – OTHER MATTERS – QUEENSLAND – application for pre-sentence custody to be declared time served under a sentence – where applicant elected to be treated as "unconvicted prisoner on remand" under s 75 and s 76 of the Corrective Services Act 1988 pending determination of appeal – where lost appeal and did not seek such a declaration – where this meant time served pending appeal not counted as time towards sentence – where Court's power under the Criminal Code to so declare now removed – whether Court could grant declaration under the slip rule Corrective Services Act 1988 (Qld), s 75, s 76 R v Jones [1998] 1 Qd R 672, cited |
COUNSEL: | S Ryan for the applicant |
SOLICITORS: | Legal Aid Queensland for the applicant |
THE PRESIDENT: The applicant seeks a declaration that the period of time during which the applicant was in custody pending the determination of his appeal from 22 June 2000 to 2 October 2000 is to count as time served under the sentence of imprisonment of seven years which he was ordered to serve on 26 May 2000.
He was convicted after a trial on 26 May 2000 of entering a dwelling house with intent to commit an indictable offence, robbery with personal violence and entering a dwelling house and stealing. He was sentenced to seven years imprisonment and a declaration was made that 395 days of presentence custody count as time served under the sentence.
He appealed against his conviction and sought leave to appeal against the sentence. On 22 June 2000 the applicant completed a form whilst in custody indicating that he wished to be treated as an "unconvicted prisoner on remand" under s 75 and s 76 of the Corrective Service Act 1988 (Qld) pending the determination of his appeals. He believed that his election to be treated in this way would allow him to stay at the Arthur Gorrie Correctional Centre where he was imprisoned.
He did not understand that this would have the effect under s 671G(3) Criminal Code that the period of imprisonment then spent pending appeal would not ordinarily be counted as a term of imprisonment unless the Court of Appeal ordered otherwise.
His appeal was dismissed and his application for leave to appeal against sentence was refused: see R v Sinden [2000] QCA 408; CA number 163 of 2000, 2 October 2000.
The Court of Appeal has made a declaration of the type sought in like circumstances in the past: see, for example, R v Jones [1998] 1 QdR 672, 678. One difficulty is that s 671G(3) Criminal Code as it stood at the time of the election made by the applicant has been repealed so that the Court no longer has power under s 671G to make the order sought. There is little doubt, however, that this Court does have power to make the declaration correcting its order under the slip rule. Mr M J Copley who appears for the respondent does not oppose the making of the declaration. It should be made.
I would make the following order:
The Court declares that the period of time during which the applicant was in custody pending the determination of his appeal from 22 June 2000 to 2 October 2000, a period of 94 days, is to count as time served under the sentence of imprisonment of seven years which he was ordered to serve on 26 May 2000.
...
THE PRESIDENT: That is the order of the Court.