SUPREME COURT OF QUEENSLAND

1. KEANE JA: I have had the advantage of reading the reasons for judgment prepared by P Lyons J.  I agree with his Honour's reasons and the orders proposed by his Honour.

2. MUIR JA: I agree with the reasons of P Lyons J and with the orders he proposes.

3. P LYONS J: On 3 September 2007, the applicant was convicted of four counts relating to break-in offences (the trial matters).  On 12 October 2007, the applicant was sentenced in respect of the trial matters.

4. On 12 October 2007, the applicant also pleaded guilty to offences which were unrelated to the trial matters (the plea matters). He was sentenced on that day in relation to the plea matters.

5. It is clear that the learned sentencing judge dealt with the trial matters and the plea matters in an interrelated way.

6. The applicant appealed against his convictions, successfully. He also appealed against the sentences imposed for the plea matters, again successfully. This Court then proceeded to re-exercise the sentencing discretion. In doing so, it varied the head sentence for each of the plea matters, reducing the head sentence for each matter from four years imprisonment, to three and a half years imprisonment. Otherwise, it confirmed the sentences imposed by the learned sentencing judge.^[1]

7. Part of the sentence of the learned sentencing judge, adopted by this Court, was a declaration relating to presentence custody. The declaration was made pursuant to s 159A of the Penalties and Sentences Act 1992.  The declarations were in the following terms:

“I state that you have been held in presentence custody in relation to these proceedings and for no other reason on and from 3 February 2006 to and including 7 July 2006, a period of 155 days and a further period from 3 September 2007 to 12 October 2007, a period of 39 days, a total of 194 days. I declare that the whole of that period of 194 days is to be imprisonment already served under the sentence.”

8. It appears that the declaration was in accordance with a presentence custody certificate placed before the learned sentencing judge.^[2]  The period of custody related to the trial matters.

9. The result of the proceedings to this point, therefore, was that this Court had imposed a sentence of three and a half years in respect of each of the plea matters, and incorporated into its determination the declaration made by the learned sentencing judge in respect of the presentence custody period.

10. When it was realised that a further period of presentence custody relevant to the sentence had not been taken into account, the matter was brought back before the learned sentencing judge. That occurred on 16 January 2009. On that occasion, his Honour was told that the period of presentence custody referable to the trial matters was “not now formally declarable”; and that the period of presentence custody which related to the plea matters had not been the subject of a declaration.^[3]  His Honour was persuaded to “delete” the presentence custody declarations previously made, and to declare as follows:

“I state that the defendant has spent 197 days in presentence custody between 15 August 2006 and 27 February 2007 and I declare that the whole period of 197 days be deemed to be time already served under the sentence”.

11. It will be apparent that the period referred to by the learned sentencing judge on this occasion is correctly characterised as presentence custody in relation to the plea matters.

12. It was made clear at the hearing on 16 January 2009 that it was intended to apply to this Court to reopen the sentence imposed by this Court, to take account of the presentence custody period for the trial matters. An application has been made under s 188 of the Penalties and Sentences Act 1992 for that purpose.

13. At this point, it is convenient to note certain provisions of that Act. They are as follows:

“159ATime held in presentence custody to be deducted

(1)If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence and for no other reason must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders.

(3)If an offender was held in custody in circumstances to which subsection (1) applies, and the court has not made an order               mentioned in subsection (3A), the sentencing court must, as               part of the sentencing order—

(a) state the dates between which the offender was held in presentence custody; and

(b)calculate the time that the offender was held in presentence custody; and

(c)declare the time calculated under paragraph (b) to be imprisonment already served under the sentence.

(3C)If an offender was held in presentence custody and the sentencing court makes a declaration under subsection (3)(c) or (3B)(c), the sentencing court must cause the chief executive (corrective services) to be advised in writing of the declaration and its details.

(4) If—

(a)an offender is charged with a number of offences committed on different occasions; and

(b)the offender has been in custody since arrest on charges of the offences and for no other reason;

the time held in presentence custody must be taken, for the purposes of subsection (1), to start when the offender was first arrested on any of those charges, even if the offender is not convicted of the offence for which the offender was first arrested or any 1 or more of the number of offences with which the offender is charged.

(4A) To help the sentencing court for the purposes of subsections (3) and (3B), the prosecuting authority must give to the court a presentence custody certificate.

(5)If the sentencing court is satisfied that the time declared under subsection (3) was not correct, it must—

(a) declare the correct time; and

(b)amend the sentence accordingly; and

(c)cause the chief executive (corrective services) to be advised of the amendment.”

14. For the purposes of subs (4A) a certificate had been provided to the learned sentencing judge at the hearing on 12 October 2007.^[4]  That certificate included the period reflected in the declaration made on that day, but no other period.  Before this Court, a further certificate was provided.^[5]  It identified a period of 194 days being presentence custody in relation to the trial matters, and a period of 197 days being presentence custody in relation to the plea matters.

15. The declaration made on 12 October 2007 which, as a result of this Court’s decision of 7 March 2008 remained in force, was clearly not correct in that it omitted the period of 197 days of presentence custody relating to the plea matters between August 2006 and February 2007. It follows that under subs (5) it was necessary to correct this declaration.

16. A question arises about the effect of the period for which the applicant was held in custody in relation to the trial matters, given that his convictions for these matters were quashed. It is necessary to note how this Court dealt with that period in its previous determination.

17. To understand that, it is necessary to look first at how the Court dealt with a similar period in respect of another person, McCartney, who had also been convicted of the trial matters. His convictions likewise were quashed. He, too, pleaded guilty to a number of offences which were unrelated to the trial matters. They were also unrelated to the matters in respect of which the applicant had pleaded guilty. McCartney had been held in presentence custody in respect of these matters. With respect to the period of presentence custody for the trial matters, this Court considered that the effect of subs 159A(4) was that this period was to be taken to relate to the remaining convictions.^[6]

18. When this Court was then dealing with the sentence for the applicant Heginbotham, it made reference to the approach taken in respect of McCartney, and adopted the same approach for the applicant Heginbotham.^[7]  In doing so, it expressly referred to the time spent by the applicant Heginbotham in presentence custody.  On the material then before the Court, that time was referable only to the trial matters.  The Court confirmed that part of the learned sentencing judge’s sentence which had declared that period to be presentence custody for the purposes of s 159A(1).

19. Neither party challenged the correctness of the approach taken by this Court on that occasion. On that basis, the declaration ultimately made by the Court, when corrected, should identify both the period of presentence custody relating to the trial matters, and the period of presentence custody relating to the plea matters.

20. However, Ms Mossop of counsel who appeared for the applicant has drawn the Court’s attention to the fact that the period of presentence custody in relation to the trial matters is in fact made up of two periods, one of 155 days and one of 39 days, and that the 155 day period occurred prior to the commission of two of the five offences which together have been referred to as the plea matters. In other words, some of the presentence custody for the trial matters occurred before the commission of two of the plea matters. It may have been this consideration which caused the application to be made for a reopening of the sentence under s 188 of the Penalties and Sentences Act.

21. It will be recalled that s 159A(4) deals with a situation where an offender is charged with a number of offences committed on different occasions. The subs requires the time of presentence custody to be calculated from the time when the offender was first arrested on any of those charges even if the offender is not convicted of the offence for which the offender was first arrested, or for any one or more of the number of offences with which the offender is charged.

22. The language of subs (4) does not suggest that a period in which an offender is in custody, prior to the commission of other of the offences with which the offender is charged, is not to be taken into account if the offender is not convicted of the offence which occasioned the first period of custody. I see nothing in subs (4), or indeed in s 159A, which would suggest that a limitation be imposed on its operation which is not raised by the language of the subsection. Accordingly the fact that two of the offences which are included in the plea matters were committed after the applicant was held in custody in relation to the trial matters does not mean that that period is not a period of presentence custody which is to be taken to be imprisonment already served under the sentence, under s 159A(1), for all of the offences of which he was convicted.

23. It is then necessary to deal with the application to reopen this sentence, made under s 188 of the Penalties and Sentences Act.  The question is whether the sentence which was imposed by this Court was “decided on a clear factual error of substance”.

24. When the sentence was imposed by this Court, the Court was under a misapprehension as to the extent of the period for which the applicant had been held in presentence custody.

25. Ultimately, the period of presentence custody is relevant for establishing the date when the applicant must be released. However it is also relevant for determining the applicant’s parole eligibility date under s 184(2) of the Corrective Services Act 2006.  In respect of the plea matters, the applicant’s parole eligibility date would be the day on which the applicant had completed 21 months of imprisonment.  Taking into account the periods of presentence custody, and the time since the applicant was sentenced in respect of the plea matters, that date is a considerable distance in the past.  On my calculation it occurred around the middle of 2008.

26. Its consequence, however, is that the applicant could then have made an application for parole to a parole board.^[8]  When initially sentenced, it was said of the applicant that he had a serious criminal history and was something of a “recidivist”.^[9]  His counsel suggested that his prospects of getting parole might be “slim”.^[10]

27. Once the declarations are made, which include the period of presentence custody for the trial matters and the period of presentence custody for the plea matters, it seems to me that it is unlikely that the Court, had it been aware of both periods, would have imposed a different sentence on the applicant. Accordingly, in those circumstances, I do not think there is a factual error of substance, which would justify reopening the proceeding. My view may well have been different, if declarations were not made in respect of the presentence custody both for the trial matters and the plea matters.

28. Accordingly, I propose the following orders:

The Court declares pursuant to s 159A(5) of the Penalties and Sentences Act 1992:

1. The applicant RYAN KEITH HEGINBOTHAM has been held in presentence custody in relation to these proceedings and for no other reason on and from:

1. 3 February 2006 to 7 July 2006 (a period of 155 days);

2. 15 August 2006 to 27 February 2007 (a period of 197 days);

3. 3 September 2007 to 12 October 2007 (a period of 39 days);

the whole of that period (being a total of 391 days) to be imprisonment already served under the sentence imposed by this Court on 7 March 2008.

2. The application to reopen the proceedings under s 188 of the Penalties and Sentences Act 1992 is dismissed.

3. The Office of the Director of Public Prosecutions is directed to give notice in writing forthwith to the Chief Executive (Corrective Services) of the declaration made by this Court and their details.