SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  I agree with Cullinane J's reasons for granting the application for leave to appeal against sentence, allowing the appeal, setting aside the sentence at first instance, and instead ordering that the applicant serve the remaining 12 months of the suspended imprisonment (originally imposed in the District Court at Rockhampton on 19 May 2006) cumulatively upon the 18 months term of the suspended imprisonment (originally imposed on 19 May 2006) ordered to be served by the District Court at Rockhampton on 13 March 2008 and that the parole eligibility date now be fixed at 1 November 2009.

[2]  FRASER JA:  I have had the advantage of reading the reasons for judgment prepared by Cullinane J.  I agree with those reasons and with the orders proposed by his Honour.

[3]  CULLINANE J: The applicant seeks leave to appeal against a sentence imposed in the District Court at Rockhampton on 28 November 2008, ordering the applicant to serve the remaining twelve months of the suspended imprisonment of a sentence of three years and six months imprisonment to be suspended after twelve months for an operational period of four years imposed in the District Court at Rockhampton on 19 May 2006.  The learned sentencing Judge on 28 November 2008 fixed 12 March 2011 as the parole eligibility date.

[4]  The original sentences were imposed in respect of one count of robbery in company, one count of grievous bodily harm and one count of burglary in company.

[5]  The applicant committed further offences during the operational period which resulted in his being dealt with twice in respect of the suspended imprisonment, this application being concerned with the second occasion.

[6]  He was first dealt with on 13 March 2008 in the District Court at Rockhampton, and ordered to serve eighteen months of the suspended imprisonment.  The court fixed an immediate parole release date.  There thus remained a balance of twelve months suspended imprisonment.

[7]  The breaches which brought the applicant before the court on 13 March 2008 concerned ten offences committed between September 2007 and January 2008. 

[8]  On 17 October 2008, the applicant pleaded guilty in the Rockhampton Magistrates Court to a substantial number of offences of dishonesty and one count of serious assault.

[9]  The effect of the sentences imposed in respect of those offences on 17 October 2008 and subsequently on 11 November 2008 when the sentence imposed in respect of the serious assault was re-opened and he was further sentenced, was that he was ordered to serve a total imprisonment of eighteen months.

[10] When the applicant came before the District Court on 28 November 2008, the learned sentencing judge invoked the whole of the outstanding suspended imprisonment and ordered that it be served cumulatively upon the expiration of the sentence imposed in the District Court on 13 March 2008, when eighteen months of the suspended imprisonment was imposed.

[11] It is common ground that the learned sentencing judge on 28 November 2008 misapprehended the full time release date of the applicant pursuant to the order of the District Court on 13 March 2008.  His Honour thought that the eighteen months imprisonment would expire on 13 September 2010 and that the twelve months suspended imprisonment that he imposed on that day would therefore expire on 12 September 2011.  In fact the eighteen months imprisonment imposed on 13 March 2008 expires on 13 September 2009.  That is His Honour erroneously thought that the suspended imprisonment imposed on 13 March 2008 would expire one year later than it did.  That error was manifested in the learned sentencing Judge’s decision to fix a parole eligibility date, 12 March 2011, which post dated the correct expiration date of the sentence which His Honour imposed.

[12] It seemed to be assumed between the parties that it was open to this court simply to correct the error of the learned sentencing judge by deleting the reference to the date which His Honour assumed and to substitute the correct date and to make an adjustment to the eligibility for parole date.  However, it would seem that such a course is not open to this court at least where, as here, the error has materially influenced the challenged orders.  In AB v The Queen (1999) 198 CLR 111 at 160 Hayne J said:

"once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh.  The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed."

[13] In R v Johnson [2007] QCA 433 Keane JA with whom the other members of the Court agreed said at [7]:

"Accordingly, even though the error which affects the sentence imposed on the applicant is technical, the error means that it falls to this Court to re-sentence the applicant.  The question for this Court is not whether the sentence was manifestly excessive, but, rather, what sentence this Court considers, 'in the separate and independent exercise of its discretion', should be imposed.”

[14] The applicant is serving terms of imprisonment totalling eighteen months in respect of the matters for which he appeared before the Rockhampton Magistrates Court on 17 October 2008 and 11 November 2008 which will expire on 17 April 2010. 

[15] The applicant has a substantial criminal history.  He has a history of breaching community based orders and committing offences during the currency of operational orders of suspended sentences.  There is no basis for a finding that it would be unjust to require him to serve the whole of the remaining suspended imprisonment.

[16] The effect of s 148 of the Penalties and Sentences Act 1992 (Qld) is that where a person is ordered to serve a period of suspended imprisonment that imprisonment is to be served immediately or concurrently with any other imprisonment being served “unless the court otherwise orders”. 

[17] Although the learned sentencing Judge was mistaken as to when the order he made would take effect it seems plain that he intended that the applicant should serve the balance of the suspended imprisonment cumulative upon the suspended imprisonment ordered to be served on 13 March 2008.  In my view this was a reasonable approach and represents the appropriate order to be made in relation to the suspended imprisonment in the circumstances of this case.

[18] So far as the parole eligibility date is concerned the applicant contended that the court should fix the date of its judgment as the applicant’s parole eligibility date whilst the respondent submitted that 1 April 2010 should be fixed for this purpose.  In all of the circumstances I think that an appropriate date to fix as the parole eligibility date is 1 November 2009.

[19] The application should be granted, the appeal allowed and the sentence imposed on 28 November 2008 in the District Court at Rockhampton set aside.

[20] I would order that the applicant serve the remaining 12 months of the suspended imprisonment such to be served cumulatively upon the term of 18 months suspended imprisonment ordered to be served by the District Court at Rockhampton on 13 March 2008.  I would fix the parole eligibility date as 1 November 2009.