R v TW[2017] QDC 309

DISTRICT COURT OF QUEENSLAND

HIS HONOUR: On the 28^th of August 2017, the defendant was arraigned in the District Court at Hervey Bay and he then pleaded guilty to 24 of 26 counts, contained in indictment number 40 of 2017. And a nolle prosequi was entered in respect of the other two counts being, respectively, counts 8 and 26 on that indictment.

The offences were particularised to have occurred in a period between July 2015 and August 2016 and as being committed at various locations at Imbil and at Hervey Bay and in respect of the defendant’s then female partner. Although and for the main part, that couple had continued residing together in this period, count 1 charged an offence of unlawful stalking which was particularised, as to the constituent acts, by the conduct which was the subject of the remaining offences on the indictment, in the main. There was also offending in breach of a suspended sentence and parole and there were repeated contraventions of a domestic violence order involved, as well.

The record of the proceedings on 8^th of September 2017, when the defendant was sentenced, as adjourned from the 28^th of August 2017, including the sentencing remarks, set out the detail upon which the sentences were imposed. On 8 September 2017, the effective sentence imposed on the defendant was a period of five years and four months imprisonment, with 324 days of pre-sentence custody, from 18 October 2016, declared as time already served. And a parole eligibility date was fixed at 18 July 2018.

In short, that sentence was constructed in this way. On count 1, the defendant was convicted and not punished. Three years imprisonment was imposed on count 11, an offence of assault occasioning bodily harm whilst armed, with lesser concurrent sentences imposed in respect of counts 2 through 7 and 9 and 10. That included individual sentences of two years imprisonment on each of counts 4, 5 and 6 which were, respectively, as regards count 4 and 5, offences of assault occasioning bodily harm and an allegation of choking in a domestic setting pursuant to section 315A of the Criminal Code, in respect of count 6. It should be noted that that was notwithstanding that, in error, in the sentencing remarks, these three counts are simply referred to as being offences of assault occasioning bodily harm. Each concurrent term was ordered to be served cumulatively on the balance of four months for the breach of a suspended sentence and which the defendant was also ordered to serve.

Then and in respect of each of counts 17 to 24, terms of two years imprisonment were imposed to be served concurrently with each other and also with other lesser terms imposed for counts 12 through 16 and 25. But those terms, effectively totalling a further period of two years imprisonment, were ordered to be served cumulatively upon the period of three years and four months otherwise imposed. It may be noted that each of counts 17, 21 and 22 were offences of assault occasioning bodily harm and that counts 18 and 23 were also charged as offences of choking in a domestic setting.

The problem that now requires attention is that when it came time for the orders to be processed in the Registry, it was discovered that in respect of count 6, the defendant had been indicted and pleaded guilty and sentenced in respect of an offence which  did not exist at the time alleged. That is, on 11 September 2015. It may be noted that other related offending that was also particularised as occurring on that same date was reflected in counts 4 and 5, offences of assault occasioning bodily harm.

Section 315A was added to the Criminal Code by section 3 of the Criminal Law (Domestic Violence) Amendment Act No. 16 of 2016, and which commenced on assent, on 5 May 2016. Counts 18 and 23 were committed, respectively, on 20 and 23 August 2016 and do not, therefore, present any difficulty. However and when the difficulty in respect of count 6 came to light, it was then brought to the attention of the parties and the matter has been mentioned in this Court with a view to the Court exercising power pursuant to section 188 of the Penalties and Sentences Act 1992, if it was able to do so. The parties have been given opportunity to consider the issue and make submissions as to the provisions of section 188 and the circumstances generally.

The short effect of those submissions is that, ultimately and for the defendant, it is submitted that the Court is empowered to do so and should act to reopen the proceeding pursuant to section 188(1)(a), which allows such a course when the Court has imposed a sentence that is not in accordance with the law. That is further contended to be with a view to the following steps: 

1. (a)
   The Court would set aside the sentence imposed on count 6;
2. (b)
   The defendant would apply for leave to vacate his plea of guilty to count 6; and
3. (c)
   In the expectation of that being allowed, either the prosecution would enter a nolle prosequi on count 6 or the defendant would seek leave to have a demurrer to count 6 upheld (see section 598(1) of the Code.)

It may be noted that whilst not itself a reason for finding power to do so, that proposed course of action is obviously more efficacious than the only alternative, which would be for the defendant to institute an appeal to the Court of Appeal, where there has not been any such appeal, to date, and the Court is told is not otherwise intended.

For the prosecution, it is, in my view, correctly conceded that the terms of section 188(1)(a) are sufficiently broad to be engaged here, on the basis that the sentence on count 6 has not been imposed in accordance with the law. That is, in that a sentence or penalty has been imposed for an offence which was not, at the relevant time, known to law (see section 11(1) of the Criminal Code).

Further and whilst it is not then conceded that the further steps which are proposed for the defendant, are open, it should be concluded that once section 188(1)(a) is engaged, the Court is empowered to deal with the matter generally as is proposed, and it may be noted that, albeit tentatively and on an ex tempore basis and, it would appear, without opposition, this Court has previously come to a similar conclusion in R v Adams [2006] QDC 197.

In the first instance, it may be noted that two general propositions are well recognised: 

1. (a)
   That an offender is not finally convicted of an offence, despite the administration of the allocutus upon the entering of a guilty plea,  until the imposition of sentence, and that a guilty plea may be withdrawn with leave at any time before the sentence is finally imposed;  and
2. (b)
   that once a Court has imposed sentence for an offence and completed sentencing proceedings, that court’s jurisdiction in respect of the matter is concluded. (see generally, Maxwell v R (1996) 184 CLR 501 at 509 and R v Mundraby [2004] QCA 493 at [11]).

However, the second of those general propositions is, of course, subject to statutory provision, such as section 188 of the Penalties and Sentences Act. That is why it can be noted that section 188(1) is expressed in terms (as relevant here) that:             

“If a Court has in, or in connection with, a criminal proceeding…-

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

the Court …. may reopen the proceeding.” 

That is an important consideration because it indicates a focus on the reopening of a proceeding in which a sentence was imposed. Further and whilst the term “sentence” is defined in section 4 of the Penalties and Sentences Act, so as to encompass individual orders made in respect of particular offences, such as is the case here, it is not uncommon for sentencing orders to be made by a Court to have some combined effect.

And it may also be noted that section 188(3) makes provision for the powers of a Court that reopens a proceeding. It is in respect of the extent of these powers that the prosecution’s submissions depart from those for the defendant, so as to contend that section 188(3) only allows for resentencing according to law and does not allow for withdrawal of a guilty plea. The very problem is then pointed out, that as a matter of law, the defendant may not be resentenced on count 6, in the sense that some replacement penalty may be imposed.

However, it should be concluded that these submissions contend for an unduly restrictive view of these provisions: 

1. (a)
   First and in order for any prospect of resentencing, it would be necessary to set aside the existing and admittedly unlawful order; 
2. (b)
   Section 188(3)(b) states only that a court may resentence the offender, rather than mandate that this must occur;  and
3. (c)
   Section 188(3)(c) provides that the Court may amend any relevant conviction or order to the extent necessary to take into account the sentence imposed under paragraph (b).

The last provision provides a clear contextual indication that the power given to the Court on the reopening of a sentencing proceeding is intended to be broad enough to encompass dealing with legal errors relating to convictions as well as sentencing orders. That is because conviction is defined in section 4 of the Penalties and Sentences Act as meaning a finding of guilt or acceptance, or the acceptance of a plea of guilty by a Court. And, further, that power is expressed broadly so as to allow amendment of any relevant conviction or order, to any necessary extent.

Accordingly, it should be concluded that:

1. (a)
   Pursuant to section 188(1)(a), it is established that the sentence imposed on the defendant on 8 September 2017 imprisoning him for two years in respect of count 6 on indictment number 40 of 2017 in the District Court at Hervey Bay, was not imposed in accordance with law, in that the term of imprisonment was imposed for an offence that was not known to law when it was alleged to have been committed; and
2. (b)
   In these circumstances, the Court should reopen the proceeding on Indictment 40 of 2017 and set aside the sentence imposed on count 6.

And because, as is common ground, the defendant may not be subject to any penalty or sentencing order on count 6 and there is no need to make any adjustment or amendment to any other order comprising the overall sentence imposed on 8 September 2017, particularly having regard to the multiplicity and extent of the offending of the defendant, it remains only necessary to consider what may then occur in respect of the conviction entered in the record in respect of count 6.

Once it is understood that the sentencing proceeding is reopened by exercise of the statutory provision allowing that to occur and contrary to the common law position that this Court would be functus officio, or without jurisdiction to further deal with the matter, not only does it follow that the Court can and should exercise power to control its own process to set aside the unlawful order made on count 6, but this then effectively places the Court in the position discussed in the decisions of Maxwell and Mundraby and where there is no sentence finally imposed in respect of count 6, or, as has been noted, that could be lawfully imposed by way of penalty.

However and to the extent that section 188(3)(b) and (c) may be seen as imposing limitation on the power of the Court on such a reopening, it may be concluded that the resentencing of the defendant is constituted by the combined effect of setting aside the existing penalty and the recognition that no further order, such as may be within the definition of sentence in section 4 of the Penalties and Sentences Act, may be lawfully made. Or, to put the matter another way, that the effect of what would occur is to resentence the defendant in accordance with the purpose for which section 188(1)(a) allows the Court jurisdiction to reopen the sentencing proceeding and so that the unlawful order is removed and any necessary and relevant amendments to the record of the Court ensue, so as to effect the lawful position for the defendant.

So, Mr Benjamin, the next step is?

MR BENJAMIN: The next step is, your Honour, I formally make application on behalf of [TW] to vacate his plea to count 6 on the indictment.

HIS HONOUR: For leave to do so?

MR BENJAMIN: For leave to do so, please.

HIS HONOUR: Is that opposed?

MS DENNIS: No, your Honour.

HIS HONOUR: All right. Accordingly, Mr Benjamin, leave is given. The record will be amended to vacate the guilty plea to count 6.

MR BENJAMIN: Thank you, your Honour.

HIS HONOUR: And what is then proposed to happen?  I suppose the next question is for you, Ms Dennis. What do you wish to do?

MS DENNIS: Your Honour, I am happy to seek the return of the indictment and make the appropriate amendment with respect ‑ ‑ ‑

HIS HONOUR: I think that is entirely ‑ ‑ ‑

MS DENNIS: ‑ ‑ ‑ to count 6.

HIS HONOUR: I think that is entirely appropriate. Return the indictment to the Prosecutor, please. Just show it to Mr Benjamin, please.

Accordingly, and having noted the endorsement made by the Crown Prosecutor, Mr Benjamin, these proceedings are concluded by noting that your client is now discharged in relation to count 6.

MR BENJAMIN: Thank you, your Honour.

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