R v Hogg[2007] QDC 367

DISTRICT COURT OF QUEENSLAND

On 22 September 2006, on his plea of guilty to 4 counts of possession of child exploitation material, I sentenced Mr Hogg to 18 months imprisonment. When passing sentence I indicated that I would have fixed a parole eligibility date at 6 months but, taking into account his personal circumstances, considered a parole eligibility date of 22 December 2006, 3 months after sentence, was appropriate.

More than 8 months later, Mr Hogg is still in prison. Mr Hogg attests that his behaviour in prison has been exemplary. On 2 April 2007, a little over 6 months after being taken into custody, he was advised by the Southern Queensland Regional Parole Board that consideration of his application for parole has been deferred until it received the Exit Report from the Sexual Offending Program he has commenced. He attests that his progress through the program is being delayed to allow new participants to catch up with current participants.

Mr Hogg applies to reopen the sentence pursuant to s 188 of the Penalties and Sentences Act 1992 on the basis that it was decided on a clear factual error of substance. The error asserted is that it was impossible for Mr Hogg to achieve parole at any point remotely near the eligibility date.

The application is out of time, having been made more than 28 days after the sentence was imposed. The Court has power to extend time. The reason for the delay is not explicit, although it appears from Mr Hogg’s affidavit that it did not become evident to him until after that period had expired that he would not be able to achieve parole on or near his eligibility date. That, in itself, demonstrates the difficulty for Mr Hogg in succeeding in his application. That is, it was not evident until some time later that he might not achieve parole near his eligibility date.

Recourse to s 188 is limited, must be based on clear statutory criteria and is not an avenue for judicial review of administrative decisions (R v Cassar [2001] QCA 300). The error of fact must be decisive in respect to the imposition of the sentence (R v Gardiner [2004] QCA 117) and it must be an error as to facts existing at the time of the sentence (R v Voss [2001] QCA 483). That is, it not sufficient for me to be persuaded, having regard to events which have occurred since I imposed the sentence, that it is in the interests of justice to reopen and vary the sentence.

2006 amendments to the Penalties and Sentences Act conferred on the courts the power to fix definite parole release dates in certain circumstances, but not for the offences to which Mr Hogg pleaded guilty (s 156??). It was evident when I passed sentence that its effect was that Mr Hogg would become eligible to apply for parole in 3 months but that the success of his application would depend on future matters, including Mr Hogg’s conduct in prison and the parole board’s assessment of Mr Hogg’s suitability for release.

In fixing the eligibility date, I did proceed in the expectation that it was possible for him to achieve parole near that date. Mr Kissick, for Mr Hogg, submits that at the date of sentence, it was impossible for Mr Hogg to achieve parole at any point remotely near the eligibility date. However, the foundation for that assertion has not been laid and Mr Hogg’s affidavit tends to establish the contrary. He deposes to his assessment, shortly before his eligibility date, by a programs officer who said she did not anticipate he would be required to undertake any courses. Unfortunately for Mr Hogg her optimism on this point does not appear to have been well founded. Further, the decision to delay Mr Hogg’s progress through the course was not and could not have been anticipated at either the point of Mr Hogg’s sentence or his assessment. Nevertheless, there is no evidence before me that establishes that, at the date I passed sentence, it was impossible for Mr Hogg to successfully apply for parole on or near his eligibility date. There may be other options open to Mr Hogg to review decisions made by the Board as to his participation in and progress through the Sexual Offenders Program but that is a matter that is not before me and cannot be pursuant to s 188.

I appreciate this decision is severe in its effect and I understand the disappointment and frustration Mr Hogg has expressed regarding his predicament. However, there is no material distinction between this case and that of R v Cassar and no clear factual error of substance has been established. In those circumstances I cannot reopen the sentence and the application must be declined.