R v RW
[2005] QCA 72
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- Unreported Judgment
- Appeal Determined (QCA)
- R v RW[2005] QCA 72
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R v RW[2005] QCA 72
R v RW[2005] QCA 72
SUPREME COURT OF QUEENSLAND
CITATION: | R v RW [2005] QCA 72 |
PARTIES: | R |
FILE NO/S: | CA No 13 of 2002 DC No 481 of 2001 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Reopening (Criminal) |
ORIGINATING COURT: | District Court at Ipswich |
DELIVERED EX TEMPORE ON: |
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DELIVERED AT: | Brisbane |
HEARING DATE: | 18 March 2005 |
JUDGES: | McPherson and Keane JJA and Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Application for reopening dismissed |
CATCHWORDS: | CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - GENERALLY - where applicant sentenced in Queensland for one charge of indecent dealing - where sentence of nine months imprisonment imposed - where sentence to be served cumulatively with sentence previously imposed in New South Wales for sexual offences - where New South Wales sentence imposed before Queensland offence was committed - whether sentences should be served concurrently - whether legal or factual error in imposition of sentence demonstrated Penalties and Sentences Act 1992 (Qld), s 156, s 188 Prisoners (Interstate Transfer) Act 1982 (Qld), s 26 R v Burke [1994] QCA 244; [1995] 2 Qd R 171, cited R v Jensen and Attorney-General [1996] QCA 182; (1996) 87 A Crim R 241, cited |
COUNSEL: | Applicant appeared on his own behalf M J Copley for respondent |
SOLICITORS: | Applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for respondent |
KEANE JA: By notice of application dated 21 December 2004, the applicant has sought to reopen the proceeding in which, so it is contended, a sentence was imposed upon him which was not in accordance with the law. The applicant relies upon s 188 of the Penalties and Sentences Act 1992 (Qld) ("the Act").
The applicant was sentenced in the District Court at Ipswich on 14 December 2001 on one charge of indecently dealing with a child under 16 years of age. The offence was committed on 12 April 1996 at Redcliffe, Queensland. The learned sentencing Judge imposed a term of nine months imprisonment by way of sentence and directed that this sentence commence from the end of the period of imprisonment which the applicant had been sentenced to serve by the Court of Criminal Appeal of New South Wales on 6 August 1999 for a series of sexual offences committed between January 1974 and July 1989.
There was an appeal to this Court from the order of the District Court. The ultimate outcome of that appeal was that on 9 October 2002, the original sentence of the District Court was left to stand.
On 12 August 2004, the applicant sought to have his sentence reopened under s 188 of the Act by an application to the District Court at Ipswich. The basis of that application was that the sentence originally imposed by the District Court on 14 December 2001, and upheld in this Court in October 2002, should have been made concurrent with the sentences imposed by the New South Wales Court of Criminal Appeal. This was said to be because the sentence imposed in Queensland was for an offence committed on 12 April 1996, at which time the applicant had not been charged with the offences committed in New South Wales; the applicant's contention being that under s 156 of the Act a sentence cannot be made cumulative upon a sentence imposed for offences in respect of which charges were not laid until after the offence the subject of the later charge was committed. The application to the District Court was refused on the express basis that the applicant's point was without substance.
The application to this Court is, in form, an invitation to this Court to exercise its powers under s 188 of the Act in respect of the sentence imposed by the District Court on 14 December 2001, rather than an appeal from the decision of the learned District Court Judge in August 2004.
Having regard to the circumstance that it was the order of this Court which ultimately imposed the sentence which the applicant seeks to reopen, this course may not be appropriate. However that may be, the power vested in the Court under this section depends on the demonstration of a legal or factual error in the imposition of the sentence sought to be reopened.
The contention which the applicant wishes to agitate in order to demonstrate an error of law or fact is plainly wrong. The power to impose a cumulative order of imprisonment is conferred by s 156 of the Act. That section provides that where an offender is serving, or has been sentenced to serve, imprisonment for an offence and is sentenced to serve imprisonment for another offence, the imprisonment for that "other offence" may be directed to start from the end of the period of imprisonment the offender is serving, or has been sentenced to serve. There is no suggestion in the text of the section that the period of imprisonment already being served must be for an offence which was made the subject of a charge before the "other offence" was committed or made the subject of a charge. Section 156 does not contain any express or implied limitation on the power of the Court of the kind for which the applicant contends.
It may be noted here that, by reason of the provisions of s 26 of the Prisoners (Interstate Transfer) Act 1982 (Qld), the sentence imposed by the Court of Criminal Appeal in New South Wales is deemed to have been imposed in Queensland for the purposes of the laws of Queensland. (See R v Jensen and Attorney-General [1996] QCA 182; R v Burke [1995] 2 QdR 171.)
It is clear that there was no legal impediment in the way of either the sentencing Judge in December 2001 or this Court in October 2002, in proceeding to impose a sentence cumulative upon the earlier sentence imposed by the courts of New South Wales.
Accordingly, I am of opinion that there is no substance in the applicant's contention. The application should be dismissed.
McPHERSON JA: I agree.
HOLMES J: I agree.
McPHERSON JA: The order is that the application before the Court is dismissed.