Harlovich v The Queen[2002] QDC 250

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 26 March 1999 the applicant, Peter John Harlovich, pleaded guilty in the District Court at Brisbane to four counts of receiving, three counts of fraud, three counts of armed robbery, one count of unlawful use of a motor vehicle with a circumstance of aggravation and one count of stealing.  An effective head sentence of six years’ imprisonment was imposed which was to commence at the expiration of any sentence of imprisonment to which the applicant was then currently liable.

2. [2]
   In his affidavit filed on 24 January 2002 the applicant states that:

“At the time of my sentencing I formed a real and legitimate expectation that I would be entitled to remission on the sentences that I was serving at the time and on the sentence that his Honour was imposing.”

3. [3]
   At the sentencing proceedings I was handed by the Prosecutor a document which indicated that the remitted discharge date for the applicant was 18 December 1999.

4. [4]
   On 9 July 2001 the applicant was handed a document indicating that as a result of certain provisions of the Corrective Services Act 2000 he had lost all remission on all sentences.  Accordingly, the sentences imposed on 26 March 1999 would not commence until 9 December 2002 and, because the applicant was not entitled to remissions in respect of those sentences, the applicant’s date for release would not occur until 8 December 2008. 

5. [5]
   The applicant complains that had I been properly informed by the Crown on 26 March 1999 that the sentences imposed on that date would not commence until 9 December 2002, the sentence would have been structured differently.  More particularly, the applicant submits that had the Crown Prosecutor properly informed me that the applicant’s remissions were cancelled upon conviction for the offences being dealt with on 26 March 1999, his sentence would have been structured differently.

6. [6]
   At no stage during the sentencing proceedings of 26 March 1999 was I informed by the Crown Prosecutor that the applicant’s discharge date of 18 December 1999 in respect of the sentences he was then serving would be altered because the convictions relating to the new offences would automatically result in the loss of remission in respect of the previous sentences.

7. [7]
   A letter to the applicant from the Sentence Management Coordinator at the Sir David Longland Correctional Centre was in the following terms:

“On 24 November 2000, the State Government introduced new legislation which involves prisoners that have been released to community supervision.  Section 10, 207B of the Corrective Services Act 2000, outlines a prisoner’s ineligibility for remission if they have been released to Release to Work, Home Detention or Parole.  This ineligibility relates to the sentence being served at the time of release and any subsequent cumulative sentences that a prisoner was subject to at the time of release.  This section of the Act is retrospective and relates to all prisoners that have been released to community supervision since 1988.

As you have been released to community supervision, your eligibility for remission has been extinguished.  Following are your new discharge dates with the amended earliest discharge date.  Please note that your community release dates have not changed and you are encouraged to re-apply at the appropriate time.

8. [8]
   Because the offences for which the applicant was sentenced on 26 March 1999 had been committed whilst he was on parole, section 207B of the Corrective Services Act 1988 applies.  This section came into effect on 24 November 2000.  It removed the applicant’s eligibility for remission in the event that before or after the commencement of the section he was granted release to work, release to home detention or parole. 

9. [9]
   Section 75 of the Corrective Services Act 2000, which came into force on 1 July 2001, provides that a prisoner serving a term of imprisonment for an offence committed before the commencement of the section is not eligible for remissions if during the period of imprisonment he has been granted release to work under the 1988 Act, release to home detention under the 1988 Act, parole under the 1988 Act or a post-prison community-based release order under the 2000 Act.

10. [10]
    The law is quite clear that once a sentencing Judge has arrived at and imposed a sentence in a case, including a sentence of imprisonment of a particular kind or duration, it is not generally open to that Court or Judge to alter or revise that sentence.  Such a step can be taken only under the power conferred by section 188(1)(c) of the Penalties And Sentences Act, which provides for a review or reconsideration of a sentence in a case where in terms of that provision, there has been “a clear factual error of substance in the sentence” (see The Queen v Scott Andrew McMahon [2002] QCA 18 per McPherson JA).

11. [11]
    That expression is not to be given an unnaturally wide interpretation (see R v Cassar, ex parte Attorney-General [2001] QCA 300 and R v Kelly [2001] QCA 202).  There is no question that in a case where the law was changed after the sentencing process had been completed, such change cannot be regarded as a matter warranting correction or revision under section 188(1)(c) of the Penalties And Sentences Act.

12. [12]
    However, in this case the applicant’s complaint relates to the alleged failure on the part of the Crown Prosecutor to properly inform the Court as to the discharge date of the prisoner, taking into account the effect of the convictions resulting from the applicant’s pleas of guilty entered on 26 March 1999, upon his entitlement to remissions relating to the earlier sentences.

13. [13]
    Had I known that in fact the applicant forfeited all his remissions upon conviction for the offences dealt with on 26 March 1999 and that his release date in respect of those sentences was 6 January 2002 and not 18 December 1999, I would not have imposed an effective head sentence of six years.  A head sentence of five years’ imprisonment would have been imposed in those circumstances.  In my opinion, the sentence that was imposed on 26 March 1999 was decided on a clear factual error of substance and leave should be granted to re-open the sentencing proceedings. 

14. [14]
    I order that the sentences imposed on 26 March 1999 in respect of the three counts of armed robbery be vacated and that sentences of five years’ imprisonment be imposed in respect of each of those counts to be served concurrently.  In all other respects the sentences imposed on 26 March 1999 are to remain undisturbed. 

15. [15]
    To avoid any doubt it is ordered that the sentences are to be served at the expiration of any sentence of imprisonment to which the applicant was liable as at 26 March 1999.  A declaration is made in the same terms as previously that the applicant has been convicted of a serious violent offence.