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Lannigan v Commissioner of Police[2015] QDC 192

Lannigan v Commissioner of Police[2015] QDC 192

DISTRICT COURT OF QUEENSLAND

CITATION:

Lannigan v Commissioner of Police [2015] QDC 192

PARTIES:

Matthew Craig Lannigan

(appellant)

v

The Commissioner of Police

(respondent)

FILE NO/S:

3145 of 2015

DIVISION:

Appeals

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

24 July 2015 (ex tempore decision)

DELIVERED AT:

Brisbane

HEARING DATE:

24 July 2015

JUDGE:

Rackemann DCJ

ORDER:

The appeal is allowed. The sentence is varied to the extent of setting the parole eligibility date as today.

CATCHWORDS:

CRIMINAL LAW – APPEAL – where period of imprisonment extended by four months by reason of the imposition of a further sentence to be served cumulatively – where, prior to the extension of the period of imprisonment, the appellant had been entitled to apply for parole – where the sentencing magistrate erred in setting a new parole eligibility date fifteen months from the date of sentence, rather than a date which postponed the appellant’s eligibility in a way which was proportional to the extent to which his period of imprisonment was extended by the cumulative four month term.

SOLICITORS:

Mr M Lannigan for the Appellant (self-represented)

Office of the Director of Public Prosecutions for the Respondent

  1. [1]
    This is an appeal against the severity of a sentence that was pronounced on the 16th of July 2014, when the Appellant was dealt with for five counts of wilful damage, one of wilful damage to police property, one of wilful and unlawful destruction, damage or removing or otherwise interfering with any part of a Corrective Service facility. He was sentenced to four months imprisonment on each of the offences to be served concurrently with each other, but cumulatively with the existing sentence.
  2. [2]
    The Appellant has no argument with that sentence insofar as it goes and rightly concedes that it was well within the range of a proper sentence. The aspect of the sentence which he contends is the setting of a parole eligibility date, which, notwithstanding the relatively short term of imprisonment which was imposed upon him, was set by the learned Magistrate as the 16th of October 2015, being some one year and three months after the imposition of the four-month sentence.
  3. [3]
    It would appear that in setting that parole eligibility date, his Honour was endeavouring to set a date in accordance with section 160F of the Penalties and Sentences Act, which requires the date fixed by the Court to be a date in respect of a period of imprisonment rather than in respect of a particular term. At the time that the Appellant was sentenced, he was already serving existing terms of imprisonment and those terms had some years to run.
  4. [4]
    It was pointed out, on behalf of the respondent that the Magistrate had made one error in failing to have regard to a sentence that was imposed upon the Appellant on the 16th of July 2012. That was not on the criminal record that had been given to his Honour, but that error was an error which went in favour of the Defendant.
  5. [5]
    Importantly, insofar as the current appeal is concerned, the parole eligibility date in relation to the period of imprisonment that was being served prior to the 16th of July 2014 had already passed. That is, the Appellant was, as at the time he was being sentenced on the 16th of July 2014, in a position to immediately apply for parole in relation to the period of imprisonment he was then serving. Indeed, he had made applications and had been unsuccessful, but was entitled to make other applications.
  6. [6]
    While it is true that, with the imposition of the further term on the 16th of July 2014, a new parole eligibility date had to be set in relation to the entirety of the period of imprisonment, that period now being extended by the four months imposed on the 16th of July 2014, it does not follow that the parole eligibility date should have been postponed by as long as to the 16th of October 2015.
  7. [7]
    The reality is that the extended period of imprisonment consisted of more than one component. The largest part of it was a component in respect of which the Appellant had an immediate right to apply for parole. It was quite proper when that period of imprisonment was effectively extended, by reason of the sentence of the 16th of July 2014, for his right to apply for parole to be postponed, to some extent, having regard to the extension of his period of imprisonment. But that postponement ought to have been, in my view, proportional with the period by which the period of imprisonment was being extended. Accordingly, the parole eligibility date should have been set a matter of a month or so after the sentence of July 2014. Certainly it should not have been postponed as long as it has been. The representative of the respondent who appeared did not seek to argue to the contrary.
  8. [8]
    Accordingly, the appeal is allowed. The sentence is varied to the extent of setting the parole eligibility date as today.
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Editorial Notes

  • Published Case Name:

    Matthew Craig Lannigan v Commissioner of Police

  • Shortened Case Name:

    Lannigan v Commissioner of Police

  • MNC:

    [2015] QDC 192

  • Court:

    QDC

  • Judge(s):

    Rackemann DCJ

  • Date:

    24 Jul 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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