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Commonwealth Director of Public Prosecutions v CCQ[2022] QCA 128

Commonwealth Director of Public Prosecutions v CCQ[2022] QCA 128

SUPREME COURT OF QUEENSLAND

CITATION:

Commonwealth Director of Public Prosecutions v CCQ [2022] QCA 128

PARTIES:

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

(appellant)

v

CCQ

(respondent)

FILE NO/S:

CA No 61 of 2020

SC No 1471 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Director of Public Prosecutions (Cth) – Further Orders

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 18 February 2020 (Wilson J)

DELIVERED ON:

22 July 2022

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Morrison JA and Crow J

ORDERS:

  1. Order number 2 made on 22 January 2021 is amended by deleting the words “and that parole eligibility be fixed at 18 February 2026”.
  2. Order number 3 made on 22 January 2021 is amended by adding, after the words “16 years”, the words “in respect of Count 1, commencing 18 February 2020”.
  3. Order number 4 made on 22 January 2021 is amended by deleting the words currently in that and substituting the following words:

“Pursuant to s 19AB(1) of the Crimes Act 1914 (Cth), a non-parole period of 10 years for the Commonwealth offences is fixed.  Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), 89 days of pre-sentence custody from 18 November 2017 to 1 December 2017 and between 5 December 2019 and 17 February 2020, is declared as imprisonment already served under the sentence in respect of all offences.  The Chief Executive (Corrective Services) is to be advised in writing of that declaration and its details”.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT ON APPEAL – OTHER MATTERS – where this Court allowed an appeal by the Commonwealth Director of Public Prosecutions and resentenced the respondent – where the orders of this Court on the resentence did not advert to the issue of declarable pre-sentence custody – where the orders did not account for the 89 days of imprisonment already served – where this was an inadvertent error – where the Commonwealth Director of Public Prosecutions applies to amend the orders to take appropriate recognition of the pre-sentence custody – where legal representatives for the respondent are in agreement with the amended orders sought – whether this Court should vary the orders as submitted

Commonwealth Director of Public Prosecutions v CCQ [2021] QCA 4, related

R v Richardson (No 2) [2010] QCA 278, cited

COUNSEL:

L K Crowley QC, with D Whitmore, for the appellant

M F Bonasia for the respondent

SOLICITORS:

Director of Public Prosecutions (Commonwealth) for the appellant

George Criminal Lawyers for the respondent

  1. [1]
    MORRISON JA:  On 22 January 2021 this Court allowed an appeal by the Commonwealth Director of Public Prosecutions against the sentence imposed on CCQ.  He was resentenced to 16 years imprisonment with a parole eligibility date fixed at 18 February 2030, being 10 years from the date of his original sentence.[1]
  2. [2]
    The sentence originally imposed on 18 February 2020 included an order pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), that 89 days imprisonment by way of pre-sentence custody be declared as time already served under the sentence.[2]
  3. [3]
    The orders of this Court on the resentence did not advert to the issue of declarable pre-sentence custody.  In specifying a date for parole eligibility 10 years from the date of the sentence, those orders did not account for the 89 days of imprisonment already served.  This was an inadvertent error.
  4. [4]
    The Commonwealth Director of Public Prosecutions applies to amend the orders to take appropriate recognition of the pre-sentence custody.  There is no question of the inherent jurisdiction of this court to vary orders if necessary to overcome a slip or accidental omission.[3]
  5. [5]
    The only orders that need amending are orders 2 to 4.  The effect was explained by Mr Crowley QC, Counsel for the CDPP, and follows below.
  6. [6]
    The amendment to order 2 is to remove the words “and that parole eligibility be fixed at 18 February 2026”.  The original sentence did not refer to that date, and it does not account for the time in pre-sentence custody.
  7. [7]
    The amendment to order 3 is to include the words “in respect of Count 1”.  Count 1 was the original Commonwealth offence to which the total effective head sentence was ordered.  The amendment makes it clear that the original sentence order in respect of Count 8 (the State offence to which a non-parole order under s 19AB(1) of the Crimes Act 1914 (Cth) cannot apply) is otherwise affirmed.
  8. [8]
    The amendment to order 4 is to add the declaration as to pre-sentence custody and to remove the date at which the non-parole period expires as it is not necessary to specify that date.
  9. [9]
    Legal representatives for the respondent are in agreement with the amended orders sought.
  10. [10]
    I therefore propose that the following orders be made:
  1. Order number 2 made on 22 January 2021 is amended by deleting the words “and that parole eligibility be fixed at 18 February 2026”.
  2. Order number 3 made on 22 January 2021 is amended by adding, after the words “16 years”, the words “in respect of Count 1, commencing 18 February 2020”.
  3. Order number 4 made on 22 January 2021 is amended by deleting the words currently in that and substituting the following words:

“Pursuant to s 19AB(1) of the Crimes Act 1914 (Cth), a non-parole period of 10 years for the Commonwealth offences is fixed.  Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), 89 days of pre-sentence custody from 18 November 2017 to 1 December 2017 and between 5 December 2019 and 17 February 2020, is declared as imprisonment already served under the sentence in respect of all offences.  The Chief Executive (Corrective Services) is to be advised in writing of that declaration and its details”.

  1. [11]
    CROW J:  I agree with Morrison JA.

Footnotes

[1] Commonwealth Director of Public Prosecutions v CCQ [2021] QCA 4.

[2]  That period of 89 days was from 18 November 2017 to 1 December 2017, and 5 December 2019 to 17 February 2020.

[3] R v Richardson (No 2) [2010] QCA 278 at [5].

Close

Editorial Notes

  • Published Case Name:

    Commonwealth Director of Public Prosecutions v CCQ

  • Shortened Case Name:

    Commonwealth Director of Public Prosecutions v CCQ

  • MNC:

    [2022] QCA 128

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Crow J

  • Date:

    22 Jul 2022

Litigation History

EventCitation or FileDateNotes
Primary JudgmentSC1471/19 (No citation)18 Feb 2020Sentenced to 12y with NPP of 6y on several federal and state offences relating to child abuse material, most serious carrying 25y maximum; varied offending involving mostly very young children and extreme depravity for sexual gratification, of sophisticated and commercial nature involving enormous quantity of material and potentially enormous audience, engaged in frequently over lengthy period; 37-38yo, guilty pleas, no criminal history, some cooperation and rehabilitative prospects (Wilson J).
Notice of Appeal FiledFile Number: CA61/2017 Mar 2020CDPP appeal against sentence filed.
Appeal Determined (QCA)[2021] QCA 422 Jan 2021CDPP’s appeal against sentence allowed, sentence set aside, offender resentenced to 16y with NPP of 10y; sentence manifestly inadequate; offending so objectively serious that no meaningful comparison to decided cases could be made, offending sat well above midpoint of possible sentences, nothing about offender’s personal circumstances justifying imposition of shorter NPP than that which is often imposed, being beyond halfway point: Morrison JA (Philippides JA and Crow J agreeing).
Appeal Determined (QCA)[2022] QCA 12822 Jul 2022CDPP’s application to amend orders in [2021] QCA 4; orders amended accordingly: Morrison JA (Crow J agreeing).

Appeal Status

Appeal Determined (QCA)

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