R v Lawrence[2010] QDC 145

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  This is an application by Mr Lawrence to reopen the sentence which I pronounced on the 12th of February 2008. On that day Mr Lawrence was dealt with for a number of offences. He was sentenced to varying terms of imprisonment, one of which was to be served cumulatively. The result was that he was effectively sentenced to four years imprisonment, but I reflected the matters in his favour by affording him an early parole eligibility date of the 23rd of July 2008. I did that after declaring 286 days of pre-sentence custody as time already served under the sentence.

At the time of sentencing I specifically asked whether there was any circumstance which might mean that parole was not reasonably achievable for Mr Lawrence, and I was informed that there was not. Mr Lawrence claims that I was misled in that regard and that accordingly, I have power to reopen the sentence under section 188(c) of the Penalties and Sentences Act 1992, which provides as follows.

Section 188(1) Court may reopen sentencing proceedings

(1) If a Court has in, or in connection with, a criminal proceeding, including proceeding on appeal –

(c) Imposed a sentence decided on a clear factual error of substance

...

the Court, whether or not differently constituted, may reopen the proceeding.

Notwithstanding the early parole eligibility date, Mr Lawrence was not released from custody onto parole as the order envisaged. Indeed, up until today he remains in custody, as a consequence of which he has served something approaching three-quarters of his sentence.

His first application for parole was subject to a decision dated the 18th of November 2008. A statement of reasons for that decision is before me as Exhibit2. The next application was decided in September 2009. Again, the statement of reasons is before the Court as Exhibit 3.

The first statement of reasons says that, notwithstanding the judicial recommendation for parole, the Board had concluded that Mr Lawrence was not suitable for parole for reasons which included his New South Wales criminal history. The statement of reasons asserted that this was not before the Court. That is not so.

Mr Lawrence is clearly of the view that the fact of his New South Wales history and the fact that his extradition is sought to New South Wales following his release in Queensland, were factors which meant that he was never going to receive parole from the Board and that he would spend the entirety of his sentence in custody (such that he was afforded no benefit for the factors which went in his favour, including his cooperation and early plea of guilty). He says that the Court was mislead, at a factual level, when it sought to reflect the matters in his favour by way of an early parole eligibility date, in the belief that parole was reasonably achievable for him on that date.

The crown referred me to four decisions of the Court of Appeal, namely R v MacKenzie [2002] 1 QdR 410, R v. Cassar exparte Attorney-General [2002] 1 QdR 386, R v. Ronkovich [2007] QCA 193 and R v. Daly [2004] QCA 324.

What emerges from those authorities is an acceptance that, if the Court sentenced on the basis of an erroneous view that parole could be obtained within the time indicated, the proceedings may be reopened, but the mere fact that parole was considered but subsequently declined does not itself demonstrate a clear factual error. Ultimately, of course, the setting of a parole eligibility date is exactly that, namely the setting of the time at which the prisoner becomes entitled to apply for parole. It is not a guarantee that parole will be granted at that time.

Nevertheless, if it was the case that, by reason of his New South Wales history, Mr Lawrence simply had no prospect of obtaining parole then I would be inclined to find that the sentence proceeded on a clear factual error of substance. The difficulty for Mr Lawrence is that I have no more than the statements of reasons to go on, and those statements of reasons, on their face, suggest that the New South Wales history, whilst influential, was not regarded as a fact which was necessarily fatal to his application.

The statements of reasons also suggest that the denial of parole was a merits decision which took into account other factors. Mr Lawrence is clearly somewhat sceptical about that, and the denial of parole on the second occasion, where he seems to have done everything that could have been expected of him in the meantime, no doubt, increases his suspicion.

If it was the case that his history, which had been known to the Court, was regarded as a disentitling factor then the statement of reasons clearly should have said so. It would be wrong in the extreme for the Parole Board to give a statement of reasons which did not truthfully disclose its reasons for denying parole. The function of a statement of reasons is not to make one's decision appear to be justified. It is, rather, to expose one's actual reasoning, so that any error can be identified and corrected.

Notwithstanding Mr Lawrence's suspicions I have no basis to go behind the statements of reasons or to conclude that, in this case, they were other than a truthful explanation of the reasoning process.

What the Crown particularly relies upon as negativing any inference that Mr Lawrence was incapable of getting parole or had no reasonable prospects of doing so as at the time of sentencing, is the fact that he has subsequently been granted parole today. I do not have before me any statement of reasons in that regard. It is obviously too soon after the decision for those to have been published.

It is curious that the decision has been made on the very day that Mr Lawrence brought this application to Court. The prosecutor was not in a position to confirm that the Board's decision to grant parole today was a response to that application. However he said that that is a view which some may take.

It would be extremely disappointing if a person, who should otherwise be granted parole, had to resort to making an application under section 188 in order to extract a decision granting that parole. The suspicion that that might have occurred here is perhaps raised by the prosecutor's frank disclosure to the Court that, on his instructions, nothing had really changed since Mr Lawrence was last denied parole. However, it would be quite wrong of me to be critical of the Parole Board in this respect, without further material before me to explain the circumstances and the reasons which have led to the grant of parole on this occasion, as opposed to its refusal on previous occasions.

It is regrettable, in my view, that Mr Lawrence has spent a large proportion of his sentence in actual custody, but my role in this application is not to sit as an appellate body in relation to the decisions of the Parole Board. My job, in relation to an application under section 188, is to focus on the sentence that was imposed and whether that proceeded, at the time, on a clear factual error. On the material before me I am not persuaded that it did so.

Accordingly, I dismiss the application.