DISTRICT COURT OF QUEENSLAND

1. [1]
   On 27 July 2012, I sentenced the applicant in respect of six offences. For two of them, which were Commonwealth offences, I sentenced the applicant to 5 years’ imprisonment with a non-parole period of 20 months.

2. [2]
   The applicant applies for leave to bring an application to re-open the sentence under the Penalties and Sentences Act (Qld) s. 188. In particular, the applicant submits the sentencing discretion proceeded on a ‘clear factual error of substance’ within s. 188(1)(c). Subs. 188(1) provides:

3. ‘(1)
   If a court has in, or in connection with, a criminal proceeding, including a proceeding on appeal—

1. (a)
   imposed a sentence that is not in accordance with the law; or

1. (b)
   failed to impose a sentence that the court legally should have imposed; or

1. (c)
   imposed a sentence decided on a clear factual error of substance; or

1. (d)
   failed to fix a date for the offender to be released on parole as required under part 9, division 3;

the court, whether or not differently constituted, may reopen the proceeding.’

3. [3]
   An application under s. 188 must be filed within 28 days of the decision.^[1]I would be inclined to grant leave to make the application if it had prospects of success.

4. [4]
   At the sentencing hearing there was some discussion about whether my fixing a non-parole period would give the applicant certainty as to his release date. I was referred to s 19AL of the Crimes Act 1914 (Cth), which then relevantly provided:

3. ‘(1)
   …………. the Attorney‑General must, by order in writing, direct that the person be released from prison on parole:

1. (a)
   at the end of the non‑parole period; or

1. (b)
   if the Attorney‑General considers that in all the circumstances it would be appropriate to do so, on a specified day, not being earlier than 30 days before the end of the non‑parole period.’

5. [5]
   By that provision, the applicant had a statutory expectation that the Attorney-General would grant him parole at or within 30 days before the end of the non-parole period.

6. [6]
   The complete picture was that the Crimes Legislation (Powers and Offences) Act 2012, assented to on 4 April 2012, amended s. 19AL with effect from 5 October 2012^[2]. Since that date, s. 19AL(1) provides:

‘The Attorney‑General must, before the end of a non‑parole period fixed for one or more federal sentences imposed on a person, either make, or refuse to make, an order directing that the person be released from prison on parole (a parole order).

7. [7]
   Because of the amendment, the applicant had, at the time of sentence, a statutory expectation only that the Attorney General would make a decision – to make or refuse to make a parole order.

8. [8]
   The sentencing proceeded on a mistake as to the applicant’s statutory expectation under s. 19AL. That was a mistake about the law. The sentence did not proceed upon a factual error of substance.

9. [9]
   The applicant argues the sentencing proceeded on a clear factual error, by analogy with cases such as R v MacKenzie [2002] 1 Qd R 410, R v Daly [2004] QCA 385 and R v Ronkovich [2007] QCA 193. But there is no analogy. All are cases where the policies and/or procedures within prison administration were likely to frustrate the sentencing court’s expectation.

10. [10]
    In MacKenzie, the Court of Appeal held it had proceeded upon a factual error because it was unaware that ‘the way the system operates’^[3]would preclude the prisoner achieving timely parole.

11. [11]
    In Daly, there was, for administrative reasons, no prospect of the applicant’s parole application being considered within time to give effect to the sentencing judge’s intention in making the recommendation for parole.

12. [12]
    In Ronkovich, the ‘problem [was] simply that too many other prisoners are listed to do the courses Mr Ronkovich is required to do before he will be considered for parole.’^[4]

13. [13]
    The present case is a little more like The Queen v Weiss [2001] QCA 373. There, legislative provisions affecting remission entitlements, which came into effect after the sentence was passed, did not permit a conclusion that the sentence had been decided upon a factual error.^[5]

14. [14]
    I have considered whether the sentence was ‘not in accordance with the law’ (s. 188(1)(a)) and whether I failed to impose a sentence I should legally have imposed (s.188(1)(b)). Neither party submitted so. I have not been referred to cases suggesting those provisions are relevant to what occurred here. I do not think they apply.

15. [15]
    In R v Cassar,ex parte Attorney-General [2002] 1 Qd R 386, the court, in joint reasons, said, at 389 [13]:

‘The jurisdiction to reopen sentencing proceedings under s. 188 depends on clear statutorily expressed criteria. There is no occasion to adopt anything but a strict approach to their applicability.’

16. [16]
    I conclude there is no power in the present circumstances to re-open the sentence. Leave to apply out of time must be refused.