Hess v McKeown[2009] QDC 302

DISTRICT COURT OF QUEENSLAND

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE IRWIN

Appeal No 581 of 2009

BRISBANE

DATE 14/08/2009

JUDGMENT

HIS HONOUR:  For reasons which were discussed during the argument yesterday I propose to take the course of announcing and then publishing my orders first, before delivering the reasons in support of those orders.  The orders will be as follows:

Subject to the parties agreeing that that covers all necessary issues that need to be the subject to the orders, I will publish that order and I will regard it as a draft order and initial it so that it can be forwarded to the Registry to enable the parole release date order to be complied with.

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HIS HONOUR:  So the amendments that should be made to cover that fact would be to paragraph 4, that the two 12 month suspended sentences imposed on 12 March 2008 be activated from 18 February 2009.

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HIS HONOUR:  And that should also be added to all of the paragraphs in paragraph 6.

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HIS HONOUR:  Well, I have amended them accordingly and I have initialled and dated the document today.  I've marked it as a draft order at this stage, although the order in the terms that I have just amended it will be incorporated into the decision that I'm about to deliver and I will see if, on the basis of that draft order, that steps can be taken to commence the processing of this matter.

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HIS HONOUR:  This is an appeal pursuant to section 222(1) of the Justices Act 1886 against a sentence imposed by a Magistrate at Richlands on the 18th of February 2009 for six offences to which the appellant pleaded guilty, together with the activation of suspended sentences for two sets of offences.  The offences to which the appellant pleaded guilty were one count each of common assault contrary to the Criminal Code, assault police contrary to the Police Powers and Responsibilities Act 2000, public nuisance contrary to the Summary Offences Act 1995, and failure to provide a specimen of breath contrary to the Transport Operations (Road Use Management) Act 1995.  There were also two counts of obstructing police contrary to the Police Powers and Responsibilities Act to which the appellant pleaded guilty.  The maximum penalty for the common assault was three years; the maximum penalty for each of the other offences was six months.

The history of the suspended sentences which were activated arises in the following way.  On the 17th of May 2006 the appellant was convicted of driving under the influence of liquor with no reading being specified, and also of disqualified driving.  He was admitted to probation for two years with a two-year licence disqualification for each offence.

On the same date he was convicted of three charges of obstructing police and sentenced to six months' imprisonment which was wholly suspended for an operational period of two years.

On the 28th of March 2007 the appellant was dealt with for a breach of the probation order for the driving under the influence of liquor and disqualified driving charges.  The breach offences, according to his criminal history, must have been one charge each of breaching a domestic violence order and obstructing police committed on the 16th of June 2006.

The total sentence imposed in relation to those offences was four months' imprisonment.  This would also have been a breach of the suspended sentence, although no action appears to have been taken at this time.  The appellant was convicted and fined for the breach of the probation order, but the order was allowed to continue.

On the 21st of January 2008 he was convicted of a further breach of a domestic violence order committed on the 20th of January 2008. He was fined. This was a further breach of the probation and suspended sentence orders. On the 12th of March 2008 he was resentenced in respect of the offences, the subject of both orders.

In respect of each of the offences for which he was admitted to probation, that is the driving under the influence and the disqualified driving charges, he was sentenced to 12 months' imprisonment, which was wholly suspended until the 16th of May 2009, a period of approximately 14 months.

In respect of the three offences of obstructing police for which he had been given a suspended sentence, the operational period was extended until the same date.

In relation to each of the six charges to which the appellant pleaded guilty on the 18th of February 2009, his Honour sentenced him to four months' imprisonment to be served concurrently with the exception of a common assault, which was ordered to be served cumulatively to the 12 month period of imprisonment which was activated in relation to the 12 March 2008 suspended sentences.

The six month period of imprisonment was also activated in relation to the other suspended sentences. In other words, the Magistrate ordered that the appellant serve the whole of the suspended terms of imprisonment. In doing so his Honour said; "I take into account that you've been in presentence custody from 16 November 2008." He fixed the 17th of November 2009 as the appellant's parole release date.

There is an issue as to whether the Magistrate, despite his language, was simply taking into account the presentence custody, or whether he was declaring this time to be imprisonment already served under the sentence. There is a presentence custody certificate which was tendered and states that from 16 November 2008 to 18 February 2009, the date of the sentence, that the appellant had been in custody solely for these offences for 94 days.

Section 159A(1) of the Penalties and Sentences Act 1992 provides: "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 the proceedings for the offence, and for no other reason, must be taken to be imprisonment already served under the sentenced unless the Court otherwise orders."

Section 159A(3A) then provides: "Subsection (3B) applies if - (a) an offender was held in custody in circumstances to which subsection (1) applies; and (b) the sentencing Court orders that the time, or part of the time the offender was held in custody is not to be taken to be imprisonment already served under the sentence." I note that the reference in paragraph (a) to the offender being held in custody in circumstances to which subsection (1) applies is defined as presentence custody.

Section 159A(3B) provides that: "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 part of the time that is taken to be imprisonment already served under the sentence or declare that no time is taken to be imprisonment already served under the sentence."

In this case, the Magistrate did not expressly declare that no time was taken to be imprisonment already served under the sentence. In such circumstances section 159A(3) applies. It provides: "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."

Although this was not done, the Court records suggest that despite the Magistrate's language, his intention was that the 94 days be declared as time already served under each of the four month sentences, including the cumulative sentence for common assault. The bench charge sheet records that in respect of the periods of suspended imprisonment imposed on 12 March 2008, "I order the defendant serve the total period of the suspended imprisonment as I consider it is not unjust to do so." The Magistrate has also endorsed the bench charge sheet with the words "See attached sheet." The attached sheet is headed with the name of "W R Hess", who is the appellant in this case. It is clearly a pro forma document which is headed "Reasons for imprisonment". The document is signed and dated by the Magistrate on the date of the sentence.

In relation to a section which states, "The defendant is convicted and sentenced to imprisonment for a period of", the Magistrate has handwritten, "in respect of each charge, four months.  Count 1 is cumulative to 12 months sentence, imposed on 13/3/08 and activated today."  The Magistrate has written in, "17 November 2009" as the Court-fixed parole release date.  He has crossed out references to suspended imprisonment, and to the Court fixing the parole eligibility date.

There is then a section headed, "Pre-sentence custody", followed by another heading, "Calculations and declarations under section 159A(1)".  The next line is, "Dates between which the defendant held in custody from", and the Magistrate has written, "16 November 2008" and after "to" the Magistrate has written, "18 February 2009".  Against time held in custody, the Magistrate has inserted, "94 days".

Beneath that are two options.  The first is, "I declare the time calculated above to be imprisonment already served under the sentence".  After the word "or", the second option appears in terms, "I direct that the period of pre-sentence custody not be taken to be imprisonment already served under the sentence.  The declared time above was taken into account in imposing sentence."  It is that latter statement that has been crossed out by the Magistrate, leaving the other option in terms of, "I declare the time calculated above to be imprisonment already served under the sentence".

The document described as "order" on the bench charge sheet must be regarded as being incorporated in the record of decision, which is endorsed on the bench charge sheet, pursuant to section 14(4) of the Justices Regulation 2004.  That is emphasised by the words, "Endorsed by the Magistrate on the bench charge sheet.  See attached sheet".  By virtue of section 14(4), the bench charge sheet is the formal official record of the Court's sentencing decision.  It can be expected to have been made by the Magistrate at the time he announced his decision, and to state what is the intent of the words by which he announced that decision. 

Consistently with this, the order for commitment, under section 152A of the Penalties and Sentences Act 1992, states with reference to the common assault, "The Court ordered the offender be sentenced to imprisonment for a term of four months.  It was stated that the offender was held in pre-sentence custody on and from 16 November 2008, to and including the 18th of February 2009, namely 94 days.  The Court declared that the whole of this time be imprisonment already served under the sentence."  The orders for commitment in relation to the other charges to which the appellant pleaded guilty on that date also include this statement.

Section 152A of the Penalties and Sentences Act provides in subsection (1) that "If a Court orders an offender serve all or part of a term of imprisonment, the proper officer of the Court must make a record of the order committing the offender into custody, and give a copy of the record to the chief executive (corrective services)."  Then in subsection (2), it is stated that "The record must be in the approved form, and may deal with each offence for which the offender is convicted."  Accordingly, the orders of commitment are the formal record of the Magistrate's decision. 

There was no power for the Court to declare any time spent in custody as time already served under the order that the appellant serve the whole of the suspended periods of imprisonment, because he had not been held in pre-sentence custody in relation to those offences.

In these circumstances, I consider that however the sentence is looked at, its effect was that the appellant was sentenced to 16 months in custody, and would be released on parole after he had served a total of 12 months in custody.  This is because he had already served three months; that is, 94 days in pre-sentence custody in relation to the sentences which were made concurrent with the activated suspended sentence of 12 months.  Accordingly, the last month of those four month terms would be served concurrently with the 12 month term.

So far as the common assault charge is concerned, the first three months of this cumulative sentence was declared as time already served under the sentence.  As a result, the appellant would be required to serve one month cumulative - that is, the appellant, on that interpretation of the Magistrate's order, would be in custody in relation to these offences from the 16th of November 2008 to the 18th of March 2010.  This is a total of 16 months, with a parole release after having served 12 months.

In accordance with section 222(2)(c) of the Justices Act the appeal is on the basis that the sentence is manifestly excessive.  It was acknowledged in R v. Melano, ex parte Attorney-General [1995] 2 QdR 186 in relation to Attorney-Generals' appeals under section 669A of the Criminal Code, that the application of this provision is generally consistent with the established principles relating to appeals against discretion referred to in House v. The King (1936) 55 CLR 499 with particular reference to the judgment of Dixon, Evatt and McTiernan, JJ, at pages 504 - 505.  Section 669A is an analogue provision to the right of a complainant aggrieved by a decision of the Magistrates Court to appeal against sentence.

I also refer on this issue to the review of authorities in R v. Dullroy and Yates, ex parte Attorney-General Queensland [2005] QCA 219; and also to Parry v. Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250 at paragraph 28.  I am indebted to Judge Dearden in that case for his review of the relevant authorities at paragraphs 27 to 29.

It follows from House that before an Appellate Court will interfere with the exercise of a sentencing discretion the appellant must demonstrate that the judicial officer acted upon a wrong principle, allowed extraneous or irrelevant material to guide or affect him, mistook the facts, or did not take into account some material consideration.  The principle in Melano is that unless the sentencing Judge had erred in principle, either because an error is discernible or demonstrated by a manifest inadequacy or excessiveness, the sentence he or she has imposed will be proper.  Variation by this Court will not be justified in such circumstances, unless perhaps in exceptional circumstances; for example, to establish or alter a matter of principle or the sentencing range which is appropriate.

The Court of Appeal also said in that case at page 190, "Support for the view that ordinarily this Court should not allow an appeal under section 669A subsection (1) unless the sentence is outside the sound exercise of a sentencing Judge's discretion, is to be found in factors that are material to the exercise of the Court's discretion."  Accordingly, as stated by Judge Dearden in Parry v. Mayfield Holdings, the question is whether the sentence appealed against was outside the sound exercise of the sentencing Court's discretion.

In R v. Mladenovic, ex parte Attorney-General [2006] QCA 176, the President of the Court of Appeal said at paragraph 15: "The appellant must establish error in the exercise of the sentencing Judge's discretion, here that the sentence is manifestly excessive, before this Court can intervene and re-exercise its sentencing discretion."

The appellant, who is 37 years of age, was 36 at the time of these offences.  As it is put by the respondent, he has a significant criminal history, has previously been imprisoned and has committed like offences.  In particular, the history includes seven previous convictions for obstructing police, including the four that I have previously referred to, and to which he was sentenced to imprisonment.  Three of them were the subject of the wholly activated six-month suspended sentence to which I have referred.

He has also been convicted over a 20-year period of one count each of insulting language, obscene language, threatening language, behaving in a disorderly manner, and contravening a direction or requirement.  He has been convicted of wilful damage on five occasions.

In November 2004, in addition to being convicted of wilful damage on police property, he was convicted and sentenced to six months' imprisonment for serious assault which, in context, can properly be regarded as being an offence against a police officer.

In 1998 he was convicted of acts intended to disfigure and sentenced to five and a-half years' imprisonment, with a parole recommendation after serving two years.

There are also the two breaches of domestic violence orders to which I have referred.

Therefore, he has a serious record for offences of violence, to property and persons, including towards police officers.  He has also been convicted on three occasions of what appear to be minor drug offences.

Alcohol has also been evident in his offending.  In addition to the driving under the influence charge that I have mentioned previously he was convicted on the 26th of October 1990 for dangerous driving causing death whilst under the influence of liquor or a drug.  He was sentenced to 3.5 years' imprisonment with a parole recommendation after serving 12 months.  His driver licence was disqualified for four years.

On the 22nd of February 2002 he was convicted of dangerous operation of a vehicle whilst adversely affected by an intoxicating substance, and with a previous conviction for such an offence.  The decision by the Court of Appeal in that case, the R v. Hess [2002] QCA 184, discloses that his blood alcohol content was .176 per cent.

The Court dismissed his appeal against two years' imprisonment with eligibility for consideration for community based release after serving nine months.  It commented that this was a deliberate protracted act of reckless driving and, if it were not for the current lengthy sentence the appellant was already serving, a much heavier sentence would have been imposed.  On that occasion his driver licence was disqualified absolutely.

The appellant's legal representative, before the Magistrate, conceded that he had an appalling traffic history.  In addition to the offences I have already referred to, in 1998, he was gaoled for three months with a two-year licence disqualification for driving under the influence of liquor.  Again, his blood alcohol content was not recorded.  On this occasion, he was also sentenced to 14 days' imprisonment for failing to provide a random breath test, and failing to supply a specimen of breath.  These are like offences, to one of those offences to which he pleaded guilty before the Magistrate.

In 2004, he was convicted of another driving under the influence of liquor charge, this time with a blood alcohol level of .182 per cent.  He was convicted on the same occasion for disqualified driving.  In relation to these offences, he was sentenced to three months and six months imprisonment respectively, with a two year licence disqualification.  In total, he has been convicted on three occasions each of driving under the influence of liquor and disqualified driving, including for the 2005 offences on which he was admitted to the probation order, which, after being breached, was the subject of the 12 month suspended sentence activated by the Magistrate.

The facts of the offences for which he was sentenced by the Magistrate are conveniently summarised in the respondent's outline of submissions as follows.  On Sunday 16 November 2008, between 8.15 and 9.15 a.m., the appellant was revving his motor vehicle loudly while parked in his driveway.  The complainant came out and asked the appellant to stop revving his engine.  The appellant got out of his vehicle, rushed at the complainant, shaped up into a fighting stance, and said words to the effect of, "I'm going to fucking hit you.  Come on, have a go".  The complainant went back to his home, and the appellant continued to rush at him for approximately 50 metres.  The complainant was in fear of the appellant.

Police attended and located the appellant standing in his backyard.  The appellant shouted words to the effect of, "Fucking cunts" at police, and indicated that he wanted to fight them also.  Police told the appellant that he was under arrest, restrained him on the ground, and handcuffed him.  In  this process, the appellant elbowed one of the police officers in the ribs.  The appellant was again placed on the ground, and he continued to shout words to the effect of, "I'm going to kill you cunts, I've raped your father, your girlfriend and your mother" at police.  Police then made a requirement for the appellant to provide a specimen of breath, and he replied with words to the effect of, "You can lick my left testicle", and failed to comply with the requirement.  The appellant was remanded in custody from the offence date until the date of the sentence.  The appellant pleaded guilty after the finalisation of negotiations, according to his counsel's submission to the Magistrate.

With reference to the proceedings before the Magistrate, after the Prosecutor outlined the facts and tendered his previous traffic and criminal history, together with the pre-sentence custody certificate, his legal representative addressed the Court, and made the following submissions.  He was in a long-term de facto relationship, and between him and his partner, they had four children aged six months and seven years.  He had a good and lengthy work history, as a brickie's labourer, and would very promptly re-enter the workforce on release from custody.  References confirmed his good history as a hard worker, and demonstrated that he was respected by his friends and neighbours, as well as being regarded as a good family man.

His incarceration had caused his family some considerable hardship, with it being quite onerous for his wife to keep things afloat.  In this regard, the legal representative identified a large number of financial commitments, including, in relation to a mortgage, extra schooling to assist one of their children, living expenses and car payments.  He was cognisant of the fact that he does have some issues he needs to address, and the time in custody has afforded him the opportunity to reflect.  Prior to his being incarcerated, he had undertaken counselling at a centre dedicated to assisting Aboriginal persons with a number of issues, and a document signed by a male counsellor was tendered before the Magistrate to illustrate this, although I note that the document does not state when the counselling was conducted.  It was said, by his legal representative, that the appellant had sought help in relation to anger management and substance abuse issues.  He and his partner had also received relationship counselling, and had made progress with this.

In relation to the offences, it was submitted that despite the appellant's issues with alcohol, he was sober at the time of the offending conduct on this occasion.  The Magistrate was told that he was revving his car because it had been playing up, and he had been endeavouring to get it going so that he could pick up his children.  He took exception to the manner in which he was approached by the neighbour, and reacted inappropriately.  He was frustrated about not being able to get the car going, and his concern about the need to use it to pick up his children.  It was said that he was remorseful and did not make any excuses for the way in which he acted.  It was also said that his reaction to the police was an embarrassment to him.

It was asserted on his behalf that the arrest was a vigorous one, and the marks made by the handcuffs were still evident because of the way in which the handcuffs were fitted.  It was said that he was in considerable pain, and this added to his frustration.  With reference to the obstruction charge, it was said that this was basically the struggle.  It was also said that the appellant did not deliberately intend to injure the officer by elbowing him, but that this was a case of reckless disregard in lashing out in his upset and frustration, causing a fairly minor injury.

His explanation for the failure to provide the specimen was that he did not fully understand the law, believing incorrectly that because he was in his driveway, the police had no right to breathalyse him.  It was emphasised that the charge related to an initial roadside breath test, rather than a failure to provide at the police station.  It was submitted that this was a relatively early plea, which had been entered after negotiations with the police, resolving a number of issues.

The common assault was based on threats and the point was made that there was no actual violence.  It was also submitted that the appellant did not intend to carry out his threats.

It was submitted on his behalf that as the offences, unlike his previous offending, did not involve alcohol, it would appear in some respects that the counselling is finding some traction.  It was submitted that the Magistrate consider not activating the suspended sentences, or only partly activate those sentences for the driving under the influence and disqualified driving offences, because this was really a different form of offending.  The point was made that since those offences had been committed in 2005 there had been no repetition of disqualified driving or driving under the influence of liquor during the disqualification period.  Therefore it was argued that the suspended sentences had done their work.

It was also submitted that, given the time he had already spent in custody, this could be seen as about one-third of a lengthier sentence and, in those circumstances, the appellant could be given an immediate parole release, either on the day of the sentence or in the near future.  It was submitted that if he was allowed to re-enter the community it would enable him to re-enter the workforce, look after his family, and engage in counselling.  It was submitted that re-entering the workforce would be the best form of counselling and therapy.  It was also asserted that given that he had three months to reflect on his less than adequate behaviour if he was allowed to go free immediately with a lengthy parole period hanging over his head, this would provide adequate deterrence.

In the unrevised sentencing decision which is available to the Court, the Magistrate commenced by saying that he would take into account what had been placed before him.  He then referred to the submission by the appellant's legal representative that he was ignorant of the law about having to provide a specimen of his breath and observed, "It seems to me, that you're a law unto yourself.  That's what it seems to be when one looks at your traffic history and criminal history.  You just think you can do what you want to, irrespective of anybody else."

The Magistrate then ordered that convictions be recorded.  He made reference to the fact that in relation to the suspended sentences which had been extended in the past, they related to the obstruction of police officers on three occasions, and the current offences also involved further offences of that nature.  He said that the appellant's behaviour was totally unacceptable and the only realistic outcome with his track record was a sentence of imprisonment.  He referred to the fact that the appellant had some family that was concerned about him and he had some employment opportunities.  Accordingly, it can be said that he took those matters into account.  He said that not activating the suspended sentences was not a realistic option.  He was of the view that he should totally activate them because the re-offending was of a serious nature.

It was after he had sentenced the appellant to the periods of imprisonment that I have referred to that he said, "I take into account that you've been in presentence custody from 16 November 2008."  He then fixed the parole release date as 17 November 2009.

In arriving at this sentence his Honour made no reference to the plea of guilty, let alone as to whether it was an early plea of guilty.  He also made no reference to the submission that the appellant had shown remorse.  He said no more on the issue of whether it was unjust to activate the whole of the suspended sentence, other than his reference to the serious nature of the offending.  It can be assumed that he considered that it was not unjust to do so, because of the serious nature of the offences.  Although, as I have observed, he said that he had taken into account what was placed before him, there was nothing on the face of his reasons to indicate what weight he gave these matters and how they impacted on the exercise of his sentencing discretion.

During argument, the respondent conceded that there was a discernible error by the Magistrate in the exercise of his sentencing discretion, such that the sentencing discretion miscarried and I should therefore re-exercise this discretion having regard to section 225 subsection (3) of the Justices Act.  This concession was based on the disparity between the statement by the Magistrate that he had simply taken the presentence custody into account and his recorded decision and consequent orders for commitment of the appellant, that it was declared to be imprisonment already served under the sentence.

As Mr Posner submitted for the appellant, the two propositions are completely different.  In response, Ms Litchen for the respondent said it was unclear what the Magistrate intended in relation to presentence custody.  Notwithstanding my interpretation as to what the Magistrate intended by saying that he had taken the presentence custody into account when read in context of his recorded decision, I agree that there is sufficient uncertainty on the face of the record about what he intended to lead to the conclusion that, as submitted by both parties, he did err in principle so as to require me to re-exercise the sentencing discretion.

This concession was made after I had discussed this inconsistency with both counsel and disclosed it to them by providing a copy of the relevant documents from the Magistrates Court file of which they were previously unaware.  These documents then became an exhibit in these proceedings.

Mr Posner correctly submitted that the record of imprisonment proforma document attached to the bench charge sheet raised concerns.  As he pointed out, it contains unamended statements about matters which may be relevant to exercising the sentencing discretion to impose a term of imprisonment which were not relevant to the present case.  For example, it included a statement that, "I am mindful that imprisonment is a sentence of last resort and desirability of not imprisoning a first offender."  The latter proposition is irrelevant given the criminal and traffic history of the appellant.  The document also contains four alternative reasons for imposing the sentence of imprisonment, none of which was expressly referred to by the Magistrate in his sentencing remarks.

As Mr Posner submits, on behalf of the appellant, the transcript of the sentencing remarks bears little resemblance to the reasons for imprisonment pro forma. Because of the judicial obligation of transparency through providing accessible reasons for decisions, as was said in the joint judgment in Markarian v. R (2005) 228 CLR 357 at paragraph 39. I do not consider that the Magistrate was intending to set out, in this document, undisclosed reasons for his sentencing decision, but rather, that he intended to use the document to conveniently record his sentencing orders. Although he may not have appreciated the difference between what he said and what he wrote about the relevance of presentence custody, in these circumstances I do not consider that he adverted to all the language of the pro forma, including the statement in your favour; "I take into account plea of guilty."

In these circumstances, the position remains that there is no evidence that the Magistrate took the plea of guilty into account in determining the appropriate sentence to impose. As I have observed he did not expressly refer to it at any stage. The closest he got was to say that he took into account what was placed before him. The failure, when imposing sentence, to state in open Court that he took account of the guilty plea in determining the sentence imposed involves a failure to comply with section 13(3) of the Penalties and Sentences Act. Although, for the reasons I have given, this failure may be understandable. As stated in R v. Mallon [1997] QCA 058 one result of this is to place the sentence in jeopardy and cause an Appeal Court the examine it closely since it does not clearly appear that the Court had taken the plea into account. For my part, it raises a question that even assuming that this and other circumstances in mitigation were taken into account as to whether they were given sufficient weight. In this case it is another factor which supports by exercising the sentencing discretion afresh.

Another discernable error in principle was the Magistrate's order that the extended suspended sentence in respect of the three offences of obstruction be activated in full. The offences which gave rise to the activation of this suspended sentence were committed during an extended operational period. This is contrary to the decisions of Williams JA, and Jerrard JA in R v. Muller [2006] 2QdR 126. Those decisions were that an offence committed during such an extended period would not itself constitute a breach of a suspended sentence, entitling the Court to act pursuant to section 147 of the Penalties and Sentences Act. This is what the Magistrate purported to do in the present case.

Although this hiatus has been addressed by amendments to sections 146 and 147 of that Act, which commenced on the 1st of December 2008, allowing the Court to deal with the offender for a breach of a suspended sentence when the breach offences occurred during the extended operational period. Because these are substantive, and not simply procedural amendments, I do not consider that are capable of retrospective application to operational periods which were extended prior to the 1st of December 2008. Ultimately, this is of little moment in the present case, beyond justifying me in exercising the sentencing discretion afresh. This is because this only affects the activation of the six-month suspended sentences and not the 12-month suspended sentences which were not subject to an extended operational period. The six-month suspended sentences were activated concurrently with the 12-month suspended sentences.

In addition, despite the respondent's submission, I consider that the principle stated by the Court of Appeal in R v. Kitson [2008] QCA 86 apply in this case. As stated by Fraser JA with whom Fryberg and Lyons JJ agreed at paragraph 17, "in a case such as this where the applicant has a claim upon the discretion for an order that he be released after serving less than half of the head sentence in view of his plea of guilty and personal circumstances, a parole release date, which is significantly beyond the midpoint of the head sentence is very unusualcf R v. Norton [2007] QCA 320, per Douglas J; So much was not in contention in this application. If such an unusual order is to be made, in my opinion the duty to give reasons requires that the sentencing remarks explain the process of reasoning underlying it." In this case I consider that there was an early plea of guilty, and despite the significance of the appellant's criminal and traffic history, he had personal circumstances related to his family which would give him a  claim upon the discretion for an order that he be released on parole after serving no more than half of the head sentence. On my interpretation of the Magistrate's decision, his parole release date was effectively set at 12 months or 75 per cent of an effective 16 month sentence. As a result, there was a duty on the Magistrate to give reasons for explaining the parole release date, which was significantly beyond the midpoint of the head sentence. As was said at paragraph 18: "Such an explanation might be quite brief in many cases, but here the reasons do not explain at all why the parole release date was postponed until after the midpoint of the sentence." This is the case here.  The best that can be done is to speculate that the Magistrate may have done this to ensure that the appellant served the sentence in actual custody equivalent to the 12-month suspended period of imprisonment that he had activated. At paragraph 19 it is said: "There are decisions of this Court to the effect that a failure to give reasons that ought to have been given amounts to appellable error." Further, at paragraph 21 it was said: "Because that aspect of the sentence was unusual and was not sought or contemplated in the submissions of either party, in my respectful submission, it should not have been imposed without the learned Judge adverting to it and giving the parties an opportunity to be heard." This statement is equally applicable here. Neither party had an opportunity to be heard on the Magistrate's decision to fix the parole release date significantly past the midpoint of the sentence.

As was said, commencing at paragraph 22, "In re Hamilton, in re Forrest [1981] AC 1038, Lord Fraser of Tullybelton said at 1045 that, "One of the principles of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him, so that he, or someone acting on his behalf may make such representations, if any, as he sees fit."  That is the rule of audi alteram partem, which applies to all judicial proceedings, unless its application to a particular class of proceedings has been excluded by Parliament expressly or by necessary implication."

At paragraph 23, the Court states, "The rule applies to sentencing of course, as has been confirmed by decisions of this Court in cases such as R v. Cunningham [2005] QCA 321 at [5], and R v. McDougall and Collas [2006] QCA 365 at [19]."  As the Court concluded in that case at paragraph 24, for these reasons, my view is that the sentence imposed by the learned sentencing Judge must be set aside and this Court is obliged  to exercise the sentencing discretion afresh. Accordingly, this is another reason why I am obliged to exercise the sentencing discretion afresh in this case.  This is notwithstanding Ms Litchen's submission that the case is distinguishable from Kitson, because it was not a case which involved the consequences of breaching previous orders of the Court, and on the authority of R v. Waters [1997] QCA 439, the activation of a suspended sentence does not amount to an order that is imposed at the time of activation.  It is submitted that the activated sentence in the current case were imposed previously; one, on the re-sentencing of the original probation order, and the other, at the time of the original order.

It is argued that the only sentences imposed by the Magistrate in this matter, and the language used in Kitson to refer to imposition, is the term "the head sentence", and therefore, that case is only applicable to matters where sentences are imposed.  However, the reference, too, imposed, in paragraph 21 of the judgment in Kitson to which I have referred, is to the imposition of a parole release date beyond the midway point of the sentence.  More significantly, section 160 of the Penalties and Sentences Act defines "impose" for the purpose of the parole provisions as "impose a term of imprisonment on an offender for an offence includes make an order that the offender serve - (a) the whole or part of suspended imprisonment for the offence."

Accordingly, the parole provisions apply to the activation in whole or in part of a suspended sentence, because, for the purpose of section 160A of the Penalties and Sentences Act, a Court is imposing a term of imprisonment on an offender for an offence in those circumstances.  I also refer to R v. Newman [2008] QCA 147.  In these circumstances, I do not consider that the principles in Kitson can be distinguished from application in this case on the basis of the respondent's arguments.  It is readily apparent that there are a number of reasons, whether all are accepted by the respondent or not, for justifying the concession that I exercise the sentencing discretion afresh.

Although there was a divergence of views as to how I should do this, the counsel for both parties agreed that it is appropriate to structure the sentence to fix a parole release date today, as submitted by Mr Posner, and around about now, as submitted by Ms Litchen.  This is sufficient concurrence to entitle me to exercise my sentencing discretion to fix the parole release date on this date, 14th of August 2009.  Having regard to the fact that the appellant commenced his remand period only in relation to these offences and for no other reason on 16 November 2008, this would mean that the appellant would serve nine months' actual imprisonment in relation to these offences before release on parole.  It is the structure of the balance of the sentence that remains the subject of contention between the parties.

Mr Posner submits on the appellant's behalf that I should take no action in relation to the breach of the six-month suspended sentence on the basis of the offences committed in the extended operational period.  I agree for the reasons I have already given, however, that does not prevent me from having regard to the fact of this breach in exercising my overall sentencing discretion.  He submits that it would be unjust to activate the whole of the 12 months suspended sentences, and instead submits that I should activate nine months of the sentence from the 18th of February 2009, the date of the sentence by the Magistrate; that is, the sentence would be completed on 17 November 2009.

In support of this, he submits that the two 12-month suspended sentences of imprisonment relate to offences of driving under the influence of liquor and disqualified driving, which were committed on the 5th of November 2005, over three years before he was sentenced by the Magistrate on 18 February 2009.  He then submits that although the appellant was breached on the 28th of March 2007 in relation to that order, based on the 16th of June 2006 breach of a domestic violence order, it must be taken that he was otherwise in compliance, because the order was allowed to continue when the matter was dealt with by the Court, some 10 months after the original order was made.

He then points to a gap of 19 months between that breach offence and the second breach offence, involving another breach of a domestic violence order on the 20th of January 2008.  Accordingly, he submitted that he had completed a substantial period of the probation order by that time, and the same could be said about the suspended sentence, which is of the same duration and was breached by the same offences.  He submits that the approach to activating the suspended sentences must be considered in light of this.

He then refers to the fact that as the appellant was re-sentenced for the original offences on the 12th of March 2008 - that is to say in relation to the offences of driving under the influence of liquor and disqualified driving, and on that occasion, sentenced to a wholly suspended period of 12 months' imprisonment for an operational period of approximately 14 months until 16 May 2009, and that he had completed eight months or more than half of this period before re-offending.

The same can be said about the wholly suspended sentences of six months' imprisonment for which the operational period was extended on the same date.  He submitted in these circumstances it would be unjust to activate the whole of the 12 months' suspended sentence, but the activation of nine months would properly reflect the level of the appellant's compliance and the nature of the breach offences.  In relation to the breach offences he reminded me of the appellant's plea of guilty, his good work history, and the fact that he supports his partner and four children.  He submitted that a greater sentence than four months imposed by the Magistrate could be imposed for the most serious offence which was the common assault against his neighbour.  He suggested that this could be reflected by a six-month concurrent sentence.

He submitted that different penalties should be imposed for the other offences to differentiate between their different degrees of seriousness as follows: a sentence of four months' imprisonment for the charge of assault police, and sentences of one month imprisonment in relation to the other offences.  It was submitted that all of these penalties should be ordered to be served concurrently. 

He submitted that it would be confusing at this stage when to ensure the sentence properly reflects the gravity of the offending and to fix a parole release date that makes sense as part of the overall sentencing, I am sentencing on the basis that I am in the shoes of the Magistrate on the 18th of February 2009, so that the sentences imposed commence from that date, while being cognisant of what has occurred since that time, if I were to do other than take the presentence custody into account.  I understand that Ms Litchen concurs with approaching the 94 days of presentence custody in this way.

He submits that although all sentences would be concurrent, the same effect would be achieved as if the six months' sentence for the offence of common assault had been made cumulative on the nine month sentence activated in respect of the suspended sentences when regard is had to the fact that the three months spent in presentence custody is, in reality, the halfway point of a six month sentence, at which point parole release would be expected in the normal course of events.  Looked at in this way, he submits that the proposed sentence is effectively a 15 month sentence which is only one month less than the total sentences imposed by the Magistrate.  This would still fix the parole release date at the nine month point of a 15 month sentence; that is, at the 60 per cent point of that sentence.

On the other hand, Ms Litchen submits that it would not be unjust to activate the whole of a suspended sentence of 12 months, and make the six months for the common assault cumulative.  That would be a total sentence of 18 months with a parole release date of nine months or, in other words, at the halfway point.  One of her arguments in support of my sentencing for a longer effective period than the Magistrate is that, although the appellant has breached many Court orders, he has not breached parole, and his rehabilitation would benefit from a longer period of parole.

However, I do not consider that I can properly adopt this principle in determining sentence, if it would increase the total sentence beyond what is objectively appropriate for the appellant's offending in the interests of his rehabilitation.  It would be wrong in principle to do so. 

As I have said, she concurred in my taking the three months into account.  For example, in setting the parole release date, she submitted that it would be clumsy to do otherwise. 

Another approach she suggested is that it could be taken into account as part of the six months cumulative sentence that she proposes on the basis that this would be constituted by three months cumulative, with three months in presentence custody taken into account.  She submitted that in this way the parole release date would be fixed at the midway point of the sentence.  As I have already noted, she made the point that the breach offences were serious offences.

My starting point is that, notwithstanding the respondent's submission, it would be unfair to impose a sentence at this time which requires the appellant to serve a greater total sentence than was imposed by the Magistrate; that is, a sentence in excess of 16 months.  This is because six months have now elapsed since the sentence was imposed, and the appellant should not be in jeopardy of serving a longer sentence, including a sentence in the community subject to a parole release by virtue of an appeal which has been lodged as a result of an admitted error in principle by a Magistrate in imposing the sentence upon him.  As both parties proceed on the basis that, whether or not I activate the whole of the suspended sentence or nine months of that sentence or some other period, that this will be the longest term of imprisonment imposed, and there is an issue as to whether any of the sentences imposed for the breach offences should be made cumulative on the activated suspended sentences, it is appropriate that I address the issue of activation of the suspended sentences in the first instance.

Section 147(2) of the Penalties and Sentences Act provides that a Court that is dealing with an offender for the suspended imprisonment must order the offender to serve the whole of the suspended imprisonment under section 147(1)(b) unless it is of the opinion that it would be unjust to do so.  The factors to which the Court must have regard in determining whether or not such an order would be unjust are set out in section 147(3).  The activated period of imprisonment must be served immediately pursuant to section 148(a) of the Penalties and Sentences Act.

In determining whether or not it would be considered unjust to require the defendant to serve the whole of the suspended imprisonment and that he should, instead, be ordered to serve part of it pursuant to section 147(1)(c) as submitted by the appellant, it is necessary to consider each of the non-exhaustive criteria set out in section 147 subsection (3) of the Act.  A number of those address whether the subsequent offence was trivial, given the nature of the subsequent offence, its relation to his previous offending and his personal circumstances. The Court is also directed to consider the seriousness of the original offence and any special circumstance that has arisen since the original sentence was imposed.

The first matter to consider is the nature of the subsequent offence and the circumstance in which it was committed pursuant to section 147(3)(a)(i).  Although the offences committed by the appellant on the 16th of November 2008 were not the most serious examples of these type of offences, I consider that even in the absence of actual violence the common assault was a serious example of this type of offence.

The victim, a neighbour, legitimately approached the appellant and asked him to stop revving his engine.  The appellant got out of his vehicle, rushed at the complainant, shaped up in a fighting stance and verbally threatened to hit him.  He also invited the victim to "have a go".  The complainant sensibly went back to his home.  Notwithstanding this, the appellant continued to rush at him for approximately 50 metres.  The victim was, not surprisingly, in fear of the appellant.

When the police arrived the appellant wanted to fight them.  Consequently, he was restrained on the ground and handcuffed. Although the exact circumstances of that are not immediately clear from the transcript of the proceedings before the Magistrate, the obstruction charges are based on his struggling against police.  It was also during this time that he committed the assault on the police officer which I accept was caused by a reckless lashing out without an intention to cause injury.  It is not suggested that the appellant caused the police officer more than a minor injury.  There is no information about any particular impact of the contact on the police officer.

The public nuisance involved yelling obscene threats at police officers, and the failure to comply with the requirement to provide a specimen of breath was in circumstances where there was nothing to suggest that he had consumed alcohol, and I proceed on the basis that, as submitted on his behalf before the Magistrate, he had not consumed alcohol on this occasion.

The second factor to be considered as required by section 147 subsection (3)(a)(ii) is the proportion between the culpability of the offender for the subsequent offence and the consequence of activating the whole of the suspended imprisonment.  The subsequent offences that I have just described were not calculated acts of criminality showing that the appellant had returned to the offending for which he was convicted in 2006; namely, the driving under the influence of liquor and the disqualified driving charges.  In fact, he had not committed any such offence since that time.  A period of approximately three years and three months had passed between the time of committing those offences and when he was sentenced by the Magistrate.  As I have said, there is no evidence that consumption of alcohol had anything to do with the failure to supply in this case.

His conduct on this occasion was, I accept, an unplanned, excessive reaction to his sense of upset and frustration which arose from his inability to start the car and which festered when he was first approached by his neighbour and then when he was subsequently approached by the police.

The third factor to consider in accordance with section 147(3)(a)(iii) are the antecedents and any criminal history of the offender.  As I have indicated, the appellant had a significant criminal history and an appalling traffic history.  His criminal history included offences of violence to persons and property.  These included seven previous offences of obstructing police and, in 2004, a serious assault in circumstances where it can be assumed that police were involved.   These are like offences to those with which he was charged on this occasion.

He also had a previous conviction for acts intended to disfigure.  The sentence demonstrates that it was a serious offence of violence.  He also had previous convictions for insulting, obscene and threatening language which are like offences to what is now described as public nuisance.  He had two previous convictions for failure to provide a random breath test and failure to supply a specimen of breath - that is one conviction for each of those offences.  These again were like offences to the failure to supply a specimen of breath in this case.

However, since being placed on probation for the 2005 offences, in May of 2006 he had only committed three offences; two of those were breaches of a domestic violence order and one was an offence of obstructing a police officer.  This is other than the resultant charges for breaching his probation order and also the offences committed on the 16th of November 2008.

As I have indicated, he has committed no further traffic offences until the failure to supply on that date.  Accordingly, since being placed on probation and subject to the suspended sentences, his criminal history and traffic history had declined in both the number of offences committed and the seriousness of those offences.

There was evidence before the Magistrate of his good employment history which allowed him to support his partner and the four children that they had between them.  There was also evidence before the Magistrate that his imprisonment had caused considerable hardship to his family, having regard to the onerous financial commitments. 

The fourth factor to consider pursuant to section 147(3)(a)(iv) is the prevalence of the original and subsequent offences.  It is notorious that the offences committed by the appellant are prevalent.

The fifth factor under section 147(3)(a)(v) is anything that satisfies the Court that the prisoner has made a genuine effort at rehabilitation since the original sentence was imposed, including, for example, the relative length of any period of good behaviour during the operational period, community service performed, fines, compensation or restitution paid, and anything mentioned in a presentence report.  On the negative side, he committed the first breach offence only about one month after he was admitted to probation and was sentenced to the wholly suspended sentence of imprisonment.  On the positive side, there was a gap of 19 months before he committed the next breach offences.  Further, the fact that the probation order was allowed to continue after the first breach suggests that he was otherwise compliant.

After being re-sentenced to a suspended sentence after his second breach, he completed eight months or more than half of the 14 month operational period before re-offending on this occasion.  It is to be noted that the operational period expired on the 16th of May 2009, approximately three months ago.  As I have said, over the past three and a-half years there has been a decline in his offending behaviour.  This suggests some genuine effort at rehabilitation has been made since the original sentence was imposed, as emphasised by his preparedness to undertaking counselling at his own initiative during this period.

I do not rely on his good work record and references to support this proposition because this was also the position when his appeal was heard on the 30th of May 2002 by the Court of Appeal.  On that occasion McPherson JA observed that he had a good future if he was prepared to take responsibility for himself and his actions.  This remains the case, although there is some evidence of efforts to do so.  However, it cannot be said that personal deterrence is not required to continue to motivate him in this regard.  The other factors referred to in the subsection do not arise in this case.

The sixth factor to consider under section 147(3)(a)(vi) is the degree to which the offender has reverted to criminal conduct of any kind.  As I have indicated there has been a decline in his offending behaviour since he was initially placed on probation for these offences.  Although the offences committed during the period of 22 months before the order was discharged and replaced by the suspended sentence were serious, as they involved breaches of domestic violence orders and obstructing police, they are not as serious as some of his prior offending.  Since being subject to the suspended sentence, as I have indicated, he did not commit an offence in the eight-month period prior to committing the breach offences.  As I have observed, this supports the argument that he has made some genuine effort at rehabilitation.

The seventh factor to consider is the motivation for the subsequent offence, as required by section 147(3)(a)(vii).  The subsequent offence appears to have been motivated by his sense of upset and frustration which initially arose from his inability to start the motor vehicle and which festered when he was first approached by his neighbour and subsequently by the police, as I have already observed.

The eighth factor under section 147(3)(b) is the seriousness of the original offence, including any physical or emotional harm done to a victim and any damage, injury or loss caused by the offender.  The details of the original offences are not known.  However, the offences of driving under the influence of liquor and disqualified driving are, prima facie, serious.  There is no suggestion, however, that the offences caused any physical or emotional harm to any person or caused any damage, injury or loss.

The extent of the blood alcohol content is unknown, but this was the third such offence in his history and he had also been convicted previously of dangerous driving while adversely affected by an intoxicating substance.  It was also the third disqualified driving offence and he had received a number of licence disqualifications, including an absolute disqualification previously.  On this occasion, his licence was disqualified for three years.

The fact that when the order was discharged he was re-sentenced to a wholly suspended term of imprisonment in respect of each of the offences, underlines the seriousness of his original conduct in the context of his criminal history.

The ninth matter under section 147(3)(c) is any special circumstance arising since the original sentence was imposed that makes it unjust to impose the whole of the term of the suspended imprisonment.  Having regard to the factors I have mentioned, it is important to recognise that since the original sentence was imposed, the appellant has made genuine efforts at rehabilitation, including of his own initiative.  As his counsel submits, while this factor relates to special circumstances arising since the original sentence was imposed, the wholly suspended sentences cannot be regarded separately from the fact that he had been admitted to a probation order in relation to the same conduct some three and a-half years before he was sentenced by the Magistrate.  During that time there had not been a repetition of that conduct and, as I have observed, his offending declined over this period.

In the eight months since the suspended sentences were imposed there had been no offending.  The breach offences were not like offences to the original offences of driving under the influence of liquor and disqualified driving, although, as I have observed, they are like offences when regard is had to other aspects of his previous offending.  Those offences were, as I have observed, an unplanned and excessive reaction to circumstances with which he was confronted on that day and which did not involve alcohol on this occasion.

Activating the whole of the suspended term of imprisonment would be the appropriate outcome, if he had not made these genuine efforts at rehabilitation.  Activating less of it would be appropriate to reflect this.  It will also ensure that he receives some benefit for his early plea of guilty, his remorse and his family circumstances which he cannot receive by virtue of the agreed parole release date, given the time that has passed since he was originally sentenced by the Magistrate.

In these circumstances I consider that the activation of the whole of the suspended imprisonment would be unjust.  Accordingly, I exercise my discretion to order the appellant to serve part of the two 12 month suspended sentences of imprisonment, namely in each case nine months from the 18th of February 2009.

As required by section 147(4) of the Penalties and Sentences Act I have stated my reasons for doing so.

For the reasons I have given, I am unable to deal with the breach of the suspended sentences of six months' imprisonment as a consequence of the offences committed during the extended operational period because of the decision in R v. Muller.  Although in that case Williams JA expressed the opinion that the offender could be dealt with for the breach of the order which resulted in the order extending the operational period, that is, the breach that was dealt with on the 12th of March 2008, I do not do so in the absence of sufficient information about the actual circumstances of that breach.  In addition, Jerrard JA considered that the Court should hear further argument before adopting this position.  Justice Atkinson felt it was unnecessary to decide that issue.

I agree with Mr Posner that the objectively appropriate penalty for the breach offences are imprisonment for six months for the common assault, which I regard as the most serious of the offences, four months for assaulting a police officer, to recognise the seriousness of assault on such public officials and one month each for the remaining offences.  I consider that these offences should be served concurrently with the partly activated suspended sentences from 18 February 2009.

I agree with Mr Posner that the necessary cumulative component to reflect that the breach offences were committed during the operational periods of suspended sentences, including the extended operational periods is achieved by simply taking the 94 days that the appellant has served in custody solely for these offences and for no other reason into account, rather than declaring it as time served under the sentence. 

For the reasons I have discussed in summarising counsels' submissions, I consider that there is difficulty in declaring this as time already served under the sentence in circumstances in which I am ordering that the sentences commence from 18 February 2009 and because six months has passed since that date the time will already have been served.  I consider that it is best dealt with by regarding it as reflecting the necessity for a cumulative sentence.  As Mr Posner has submitted, on the basis that in the normal course of events, parole release can be expected at the midpoint of a sentence, this three month period of presentence custody can be regarded as the midway point of a sentence of six months with the result that the sentence I impose is equivalent to a sentence of 15 months. 

I fix the appellant's parole release date as today, the 14th of August 2009.  This is approximately three months before the appellant's full time release date of the 17th of November 2009.  If the total sentence is regarded as 15 months, this parole release date is at the 60 per cent point of his sentence.  If it is regarded as 12 months, it remains at the 75 per cent point ordered by the Magistrate.  The reason for this unusual position is that as a result of the passage of time between the sentence and the hearing and determination of this appeal, this is the earliest parole release date that is available.  As indicated, both parties have had the opportunity to make submissions about this and support the fixing of a parole release date at or around this date.

The result is that the appellant will remain subject to parole for a further three months after his release from prison.  I repeat what was said by McPherson JA in R v. Hess, the Court of Appeal decision concerning him that "the appellant has a good future if he is prepared to take responsibility for himself and his actions.  It is hoped that he will continue his efforts to do so."

Accordingly, the orders of the Court are as follows:

1. Appeal allowed;
2. The sentences imposed by the Richlands Magistrates Court on 18 February 2009 are set aside;
3. The orders made by the Richlands Magistrates Court on 18 February 2009, activating the whole of the 12 months' suspended sentences imposed on 12 March 2008 and the six months' suspended sentences, in respect of which the operational period was extended on that date, are set aside;
4. It is ordered that nine months each of the two 12 months' suspended sentences imposed on 12 March 2008 be activated from 18 February 2009;
5. No action is taken in relation to the breaches of the three six month suspended sentences, in respect of which the operational period was extended on 12 March 2008, because on the authority of R v. Muller [2006] 2 QdR 126, the Court has no power to deal with the appellant for a breach of a suspended sentence as a consequence of the offences committed during the extended operational period;

6. (a) On the charge of common assault, the appellant is sentenced to imprisonment for a term of six months from 18 February 2009;

2. On the charge of assault police, the appellant is sentenced to imprisonment for a term of four months from 18 February 2009;
3. On each of the charges of obstruct police, the appellant is sentenced to imprisonment for a term of one month from 18 February 2009;
4. On the charge of public nuisance, the appellant is sentenced to imprisonment for a term of one month from 18 February 2009;
5. On the charge of failing to provide a specimen of breath, the appellant is sentenced to imprisonment for a term of one month from 18 February 2009;

7. It is ordered that all sentences be served concurrently and that a conviction is recorded in respect of each charge;
8. The parole release date of 17 November 2009 is set aside;
9. It is ordered that the parole release date be 14 August 2009;
10. (a) Between 16 November 2008 and 18 February 2009,the appellant was held in presentence custody;

(b) The term that the appellant was held in presentence custody was 94 days;

(c) It is declared that no time is taken to be imprisonment already served under the sentence.

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HIS HONOUR:  All right, in those circumstances there are no orders as to costs.

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