R v Eru-Guthrie[2021] QDC 174

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 13 April this year, the applicant, Jwuan David Arama Eru-Guthrie, appeared before me and pleaded guilty to a single offence of unlawfully doing grievous bodily harm. After hearing submissions, I ordered that the applicant be imprisoned for a term of four years and I fixed a parole eligibility date^[1] of 1 December 2021. A period of detention in pre-sentence custody was also declared to be time already served under the sentence imposed. The parole eligibility date of 1 December 2021 was sixteen months after the applicant was first taken into custody. This was an error. In my sentencing remarks I had said it was appropriate to fix a parole eligibility date that was fourteen months after the applicant had been taken into custody. Soon after the sentence hearing the miscalculation of dates was brought to my attention and as a result, on 15 April 2021, I reopened the proceeding and changed the parole eligibility date to 1 October 2021.
2. [2]
   On 13 May 2021 the applicant applied for the sentence to be reopened again.^[2] The application was made pursuant to section 188 of the Penalties and Sentences Act 1992 (Qld) (‘PSA’) and was based on the submission that the sentence was ‘decided on a clear factual error of substance’. The error was said to lie in my fixing the date for parole eligibility. The applicant submitted that my orders reflected an expectation that the applicant would be considered for parole at about that time. It was said that delays by the Parole Board in deciding applications for parole meant that, at the time I sentenced the applicant, there was no prospect his parole application would be decided around 1 October 2021.
3. [3]
   On 6 August 2021 I heard submissions in relation to the application. On that day I ordered the sentence proceeding be reopened, I resentenced the applicant to imprisonment for three years and I fixed his parole release date as 1 October 2021. The period of time the applicant spent in pre-sentence custody was taken into account but not taken to be time already served under the sentence imposed. These are my reasons for doing so.

Evidence relied upon at the hearing of the application to reopen the proceeding

4. [4]
   It is convenient to commence with a summary of the evidence relied upon by the applicant. This consisted of two affidavits of Loren Fabian to which was exhibited some correspondence from the Parole Board of Queensland. The effect of the evidence was that the Parole Board had received the applicant’s parole application on 20 April 2021. An email from the Director of Legal Services of the Parole Board told the applicant’s lawyers that:

A prisoner lodging a parole application [on 20 April 2021] is likely to have it decided in December 2021.

5. [5]
   A third piece of correspondence from the Parole Board stated that at the end of May 2021 there were 4,399 ‘outstanding files’ which included 2,084 applications for parole. It was said that a prisoner who made an application on 21 June 2021 would not be likely to have it decided before February 2022.
6. [6]
   The applicant submitted that this evidence demonstrated the applicant would not have his application for parole decided until well after 1 October 2021. Further, it was said that this was the position at the time the sentence was decided, just five days before the application for parole was received by the Board. On this basis it was submitted the sentence was decided on a clear factual error: that I erroneously thought the applicant’s parole application could be considered about the time set as his parole eligibility date. While the respondent opposed the application, it was only on the basis that the evidence did not demonstrate a ‘clear’ factual error. It was submitted that the prediction of a delay until December 2021 was expressed in terms of probability rather than certainty and, on that basis, could not establish a clear error.
7. [7]
   In order to determine the application, it was necessary to consider a number of matters. First, what was the factual basis upon which the sentence was decided? Secondly, what is the proper approach to an application to reopen a proceeding pursuant to section 188? Thirdly, applying that approach, was the sentence decided on a clear factual error of substance? Finally, if that question is answered affirmatively, should the sentence be reopened and a different sentence imposed?

What was the factual basis for the sentence?

8. [8]
   In sentencing the applicant, I did not accept a submission made on his behalf that a sentence of three years’ imprisonment was appropriate. It was my view that a sentence of imprisonment for four years with parole eligibility after serving 14 months properly reflected the circumstances of the offence and the applicant’s personal circumstances. I said:

That, I hope, will give you the best possible chance to improve yourself and to not get into trouble when you are released. It also gives to the parole board the power to consider all of the relevant circumstances at the time to decide exactly when and how you might be released from jail.

9. [9]
   Considering the time the applicant had spent in pre-sentence custody, the parole eligibility date was set at 1 October 2021, that is, a little less than six months after the sentence was imposed. During the sentence proceeding the issue of delay by the Parole Board in deciding parole applications was raised. I observed that I was aware there might be delays of ‘about six months’. Defence counsel and the prosecutor did not disagree with this observation. The date selected for parole eligibility, 1 October 2021, may be seen as being sufficient to accommodate this possible delay. Of course, an eligibility date is not a release date. In setting a parole eligibility date there can be no particular expectation about when a prisoner will in fact be released. That will be for the parole board to decide. But in fixing a date on which the applicant was to be eligible for release on parole, it can be expected that those given responsibility for the supervision of the applicant would discharge their obligations in accordance with the statutory framework governing parole.
10. [10]
    It is helpful at this point to mention some provisions of the Corrective Services Act 2006 (Qld) relating to applications for parole. Section 180 permits a prisoner who has a parole eligibility date to apply for a parole order no more than 180 days before the eligibility date. 180 days before 1 October 2021 was 4 April 2021. Upon receiving an application, the board is required by section 193 to grant or refuse parole within 120 days, or 150 days if the decision is deferred to obtain additional information. As things stood at the sentence hearing in April, there appeared to be sufficient time between then and the date of parole eligibility to allow an application to be made and decided, if not by the eligibility date, then at least around that time. It was on this basis that the sentence was decided.
11. [11]
    With this in mind I turn to consider the proper approach to an application to reopen a sentence proceeding.

Legal principles relevant to the power to reopen a proceeding

12. [12]
    I begin with something of the history of section 188 of the PSA.^[3] This provides context and assists an understanding of the limited occasions where it is appropriate for a court to reopen a sentence proceeding because of a factual error. Section 188 of the PSA was part of the Act when it commenced, somewhat unexpectedly,^[4] on a Friday morning in 1992. The original provision permitted reopening a proceeding only where the Supreme or District Court had

1. (a)
   imposed a sentence that [was] not in accordance with the law; or
2. (b)
   failed to impose a sentence that the court legally should have imposed

13. [13]
    The legislation as originally enacted was thought to have left open the question of whether a Court could reopen a sentence proceeding where the sentence had been decided based upon some factual error. This question was answered in Attorney-General v Woodford [1999] 1 Qd R 244.^[5] In that case Trafford-Walker DCJ had sentenced Woodford for an offence of misappropriation. At sentence his Honour was informed she had no prior convictions. It was soon discovered this was not true and, two days later, the Crown asked the judge to reopen the sentence. His Honour declined to do so and the Attorney-General brought an action in the nature of mandamus in the Court of Appeal. The Court (Fitzgerald P, Pincus JA and Derrington J) discharged the order nisi, holding that under the original form of section 188, the District Court had no power to resentence a prisoner where the original sentence was based upon an error of fact. Their Honours stated:

It is desirable to add that the Penalties and Sentences Act 1992 might with advantage contain power to do what we have held, in this judgment, cannot presently be done. The Parliament might be asked to consider an amendment of s. 188 so as to enable the correction of a sentence (within some suitable time limit), where the original sentence has been based on a clear factual error.

14. [14]
    Parliament responded quickly and in April 1997, pursuant to the Criminal Law Amendment Act 1997 (Qld), a new paragraph (c) was inserted into section 188(1).^[6] This provided a Court could reopen a proceeding where it had:

3. (c)
   imposed a sentence decided on a clear factual error of substance.

15. [15]
    An early decision concerning the amended section was R v DC [1999] QCA 486. The facts of that matter are not relevant for present purposes, but while considering section 188(1)(c) Thomas JA (with whom McMurdo P agreed, G. Williams J dissenting as to the result) stated at [13]:

I do not think the term ‘clear factual error of substance’ presents any particular difficulty. The use of the word ‘clear’ suggests that the court should not act unless the error is clearly shown, and the words ‘of substance’ suggest that this exceptional procedure should not be invoked in relation to pettifogging points or relatively minor mistakes. Those words suggest to me the need for something of sufficient importance as to be likely to call for some material alteration of the sentence.

16. [16]
    In the years that followed there were a number of applications to reopen sentence proceedings on the basis of a ‘prisoner’s disappointed parole expectation’.^[7] An issue of this kind came before the Court of Appeal in R v MacKenzie [2002] 1 Qd R 410. MacKenzie had pleaded guilty to an offence of manslaughter and been sentenced to imprisonment for eight years with a recommendation that she be considered for parole after serving three years. On 11 August 2000 her appeal against sentence was allowed by a majority of the Court of Appeal (McMurdo P and Dutney J, McPherson JA in dissent) and she was resentenced to imprisonment for five years with a recommendation for parole after serving 12 months.^[8] In October she applied to the Court of Appeal to reopen the sentence proceeding. The basis for the application was that the system for classification of prisoners then applying was such that the earliest MacKenzie could be released on parole was about four months after the date on which she became eligible pursuant to the orders of the Court of Appeal. The correctness of this assertion was not challenged by the Crown. MacKenzie submitted that the Court decided the sentence on the assumption that the recommendation for parole was at least capable of being acted upon, an assumption shown to have been false at the time the sentence was imposed.
17. [17]
    It is helpful to set out in full some of the judgement of Dutney J, with whom McMurdo P agreed,^[9] dealing with section 188(1)(c):

26. [26]
    Applying the ordinary meaning of the words in the subsection, it seems to me that the power is available when the Court imposing the sentence has acted on an erroneous factual basis in some material way.
27. [27]
    Is that the case here? Here in imposing a sentence with a recommendation for early parole the Court should be taken to have appreciated that such a recommendation is not a guarantee of release on the earliest possible date. The prisoner must still apply and satisfy the Community Corrections Board that it is appropriate to release her having regard to proper criteria and the circumstances of her particular case … Since the relevant time for determination of the question of whether there was a factual error is the time of the sentencing proceeding sought to be reopened (see R v DC [1999] QCA 486 per McMurdo P at para 3) it is not appropriate to reopen the sentence under the provision simply because it transpires subsequently that the recommendation is not given effect to by early release. I do not think s 188(1)(c) gives the Court that power. In this case, however, the applicant goes further and says that because of the way the system operates and the timing of the judgment of this Court she would never in fact have been released on or about the anniversary of her incarceration and that the Court must have been labouring under an erroneous view of that fact in imposing a sentence of imprisonment coupled with a recommendation that would never have been accommodated within the parole system irrespective of the particular merits of the applicant’s case.

…

29. [29]
    For myself, however, I had and have the view that Mrs MacKenzie should have been released after about 12 months for reasons I expressed in my judgment on the appeal. At the same time I recognised that Mrs MacKenzie might not after close consideration of her application be released at the time I expected. Had I been aware that for reasons set out above and in the material filed on this application that Mrs MacKenzie could not have been released because despite the recommendation she was not then to be considered eligible to apply and that by virtue of the appeal itself Mrs MacKenzie was precluded from putting herself into a position to apply I may well have considered a different course. Since I was a member of the majority in relation to sentence I have therefore come to the conclusion that in determining the sentence the Court acted under the factual error that the recommendation could be even if it might not be given effect to and that that error is sufficient to enliven the power under s 188(1)(c).

…

31. [31]
    The critical feature of this case which allows the operation of s 188(1)(c) is that the Court gave a recommendation which simply could or would not be implemented by those charged with the subsequent supervision of the applicant. That circumstance was occasioned by matters beyond even the theoretical power of Mrs MacKenzie to remedy because she was within the appeal process … [T]he true fact here was that despite the recommendation the Community Corrections Board would not consider Mrs MacKenzie’s application on its merits at the recommended time. While this refusal may constitute a reviewable error of law, the fact of the refusal is a fact which may also enliven s 188(1)(c).

18. [18]
    While McMurdo P agreed with the reasons of Dutney J, her Honour stated (at [10]):

I stress this case turns very much on its own specific facts: it is not appropriate to re-open a sentence under that section merely because a judicial recommendation for parole is not subsequently followed by the Community Corrections Board.

19. [19]
    Following the decision in MacKenzie, two cases of present significance were decided in July 2001. The first was R v Kelly [2001] QCA 292. Kelly had been convicted of manslaughter and imprisoned for 12 years. The sentencing judge had, in accordance with the Corrective Services Act at that time, recommended Kelly be released on parole after serving four and a half years’ imprisonment. A period of time in pre-sentence custody was declared to be time already served under the sentence imposed. Kelly successfully appealed against the sentence. The Court of Appeal ordered that Kelly be imprisoned for nine years with a recommendation for parole after serving three and a half years. Taking into account pre-sentence custody, Kelly became eligible for parole in December 2000. He was not granted parole and applied to the Court of Appeal (as the sentencing court) to reopen the sentence proceeding.
20. [20]
    The application was heard on 9 July 2001 and decided on 27 July 2001. The Court (McMurdo P, Davies and Thomas JJA) refused Kelly’s application. It was noted by the Court that the time for determining whether there was a clear factual error of substance of substance was the time of the original sentence proceeding. The Court went on to emphasise that the outcome in MacKenzie turned upon there being, at the time the sentence was imposed, existing facts unknown to the Court that made it impossible for the parole recommendation to be followed. Kelly was unable to demonstrate the sentencing court had acted under a similar, or equivalent, misapprehension of the true facts.
21. [21]
    Kelly was quickly followed by R v Cassar, ex parte Attorney-General [2002] 1 Qd R 386; [2001] QCA 300. This was an appeal by the Attorney-General against a decision of a District Court Judge to reopen a sentence proceeding in purported reliance upon section 188(1)(c). It was argued on 25 July 2001 and decided on 31 July 2001. Cassar had first been sentenced in the District Court in June 1991 in relation to nine offences of armed robbery. He was sentenced to imprisonment for 15 years and parole eligibility recommended after he had served six years. In the years following the imposition of the sentence Cassar breached a ‘release to work’ order and committed other breaches of discipline within prison. This included the consumption of illicit drugs and the unlawful possession of a syringe. Perhaps unsurprisingly, Cassar was not released on parole. In April 2001 he applied to a different District Court Judge (the sentencing Judge having retired) to reopen the sentence proceeding. The judge allowed the application and resentenced Cassar to imprisonment for 10 years, the full term of which would have expired in the middle of 2001. The purported error relied upon by Cassar was that the District Court at the time of sentence had a ‘reasonable expectation’ he would be entitled to parole in June 1997, after serving six years’ imprisonment.
22. [22]
    The Court of Appeal (de Jersey CJ, Thomas and Williams JJA) allowed the Attorney’s appeal, set aside the orders made at the application to reopen the sentence proceeding and confirmed the sentence imposed originally. The Court noted that it was impossible to characterise an expectation about future parole as being a matter of existing fact.^[10] It was stated by the Court at [13] and [16]:

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. Otherwise, the integrity of the sentencing process will be imperilled. The apparent extent of current recourse to s 188, which one would think should only very occasionally be justified, warrants our adding these brief observations.

…

Attempts to review sentences, in light of subsequent events, by resort to a creative, non-literal construction of s 188 must be strongly discouraged. The section may not be used as an avenue for the judicial review of administrative decisions. Sentences are reviewed through the appeal process, not by means of this provision, which is in the nature of a ‘slip rule’, to be used in the exceptional, limited circumstances to which in precise terms it refers.

23. [23]
    The Court had earlier in the decision distinguished MacKenzie, noting the error in that case was that the sentencing court was unaware of facts that existed at the time of sentence, and which meant MacKenzie simply could not be released to parole in accordance with the parole recommendation. This was contrasted with Cassar’s own position where it was said that his ‘loss of parole prospects consistent with the Court’s recommendation in 1991 flowed not from any such mistaken view then held by the Court, but from the prisoner’s own subsequent misconduct’.^[11]
24. [24]
    I have set out in a little detail the history of the section and discussed some of the decisions concerning its operation. From this survey the following essential points may be distilled:

1. Section 188(1)(c) is only engaged where there existed, at the time the sentence was imposed, a clear factual error of substance;^[12]

2. The words of the section require that the error be clearly shown and of a kind that had the error had not existed a materially different sentence would have been imposed;^[13]

3. The power to reopen a proceeding and impose a different sentence should be exercised sparingly and only in exceptional, limited circumstances;^[14]

4. The mere circumstance that a prisoner has not been, or will not be, released in accordance with a future parole eligibility date does not establish the sentence was affected by factual error;^[15]

5. Much will depend upon the reasons why parole has not been, or will not be, considered or granted. There can be no factual error existing at the time of sentence if release to parole is refused because of the conduct of the prisoner subsequent to the sentence.^[16] It may constitute a factual error if a court decides a sentence on the understanding that a parole eligibility date could be (even if it might not be) given effect by the prisoner being released on parole and this understanding is shown to have been incorrect for reasons beyond the control of the prisoner;^[17]

6. This may be so even if the refusal or inability to consider or grant parole is otherwise a reviewable error of law: it is the fact of the refusal or inability that may enliven the power to reopen the proceeding.^[18]

25. [25]
    I have not so far in these reasons mentioned the decision of the Court of Appeal in R v Ronkovich [2007] QCA 193, upon which the applicant relied. Ronkovich had pleaded guilty to unlawfully doing grievous bodily harm and sexual assault. He was sentenced to imprisonment for three and half years and a parole eligibility date was fixed as 6 December 2007. That date was ten months after the sentence was imposed. Ronkovich applied for leave to appeal against the sentences. The appeal was argued in May 2007 and decided in June 2007, some months before the eligibility date. Atkinson J considered that the sentences imposed were not manifestly excessive and dismissed most of Ronkovich’s complaints about the sentence process.^[19] But her Honour considered sentencing discretion had miscarried because the sentence had been^[20]

decided on a clear factual error of substance, that is, that the date set as the parole eligibility date was the date on which the applicant could and would be considered for released on parole unless his behaviour after he was sentenced or new material that came to the attention of those considering his application for parole, otherwise warranted.

26. [26]
    The basis for this conclusion had been set out by Atkinson J in the preceding paragraphs:^[21]

The applicant also complained that he has been told by the correctional authorities that he cannot be released on parole, or at least that they will not recommend his release on parole on his eligibility date, because he will not have completed the courses they require of him before he can be released on parole.

If this is true, and the court’s experience of the difficulty correctional authorities have in providing sufficient places in courses for prisoners suggests that it might well be, one important part of the sentencing discretion in this case has been frustrated.

27. [27]
    Jerrard JA agreed, stating that the ‘incorrect assumption Mr Ronkovich would be considered for parole on the eligibility date’ meant the sentencing discretion miscarried. White J also agreed with the reasons of Atkinson J. Ronkovich involved an application of established principles to a particular set of facts. It is an example of a difficulty similar that in MacKenzie: the order of the sentencing court seemingly could not be given effect because of circumstances that existed, but were not known to the court when the sentence was imposed.

Was the sentence decided on a clear factual error of substance?

28. [28]
    As I have already set out, an analysis of the sentence proceeding in this case showed it rested upon an assumption that there was sufficient time before the date of parole eligibility to allow an application to be made and decided. The evidence filed in the application to reopen sentence demonstrated that a parole application made a few days after the sentence was ‘likely’ to be decided in December 2021. Strictly speaking, the email addressed delays that might attend an application made on 20 April 2021. But there is no reason to think the position would have been materially different had the applicant been able to lodge an application for parole immediately after the sentence proceeding on 15 April 2021. I accepted there was evidence that, at the time of sentence, it was likely that an application for parole lodged by the applicant would not be considered before December 2021.
29. [29]
    The respondent seized upon the use of the word ‘likely’ to submit there was no ‘clear’ error. That is, the information from the Parole Board spoke only of a probability that there would be a delay and there was always a chance that the applicant’s application for parole would be considered in a timely way. I did not share the prosecutor’s optimism. The word ‘likely’ must be seen in the full context of the correspondence from the Board, sent on 20 April 2021:

As at today the Board has around 2175 undecided new parole applications. Approximately three quarters of new parole applications finalised this month will be decided outside the timeframes required by s. 193(3) of the Corrective Services Act. A prisoner lodging a parole application today is likely to have it decided in December 2021.

30. [30]
    Seen in this context the word likely could not reasonably engender optimism that the applicant’s application for parole would be one of the fortunate ones dealt with promptly. I was satisfied the evidence in the application established that, as things were at the time of the sentence, and through no fault of the applicant, his application for release on parole would not be decided until a point in time significantly later than 1 October 2021. Had I known this at the time of sentence it would have been necessary to consider different sentencing options. It was for this reason that I was satisfied the sentence had been decided on a clear factual error of substance. The error was essentially the same as that which led the Court of Appeal to reopen the sentence imposed in R v MacKenzie where Dutney J stated:^[22]

The critical feature of this case which allows the operation of s 188(1)(c) is that the Court gave a recommendation which simply could or would not be implemented by those charged with the subsequent supervision of the applicant.^[23]

31. [31]
    I would finally note that it may be that other avenues of redress, such as those provided for in the Judicial Review Act 1991 (Qld), are also available to the applicant. But as was noted in MacKenzie, this cannot exclude the operation of section 188.^[24]

Was this application brought within time?

32. [32]
    An application by a party to reopen a proceeding must be made within 28 days after the day the sentence was imposed, unless an extension of time is allowed by the court.^[25] This application was to reopen the sentence proceeding that concluded with my orders of 15 April 2021. A copy of the application was sent to the registry by email. It was received by the registry a little before 4.00 pm on 13 May 2021. This was (just) within the allowed 28 days. A few days later the original arrived by post and was stamped with the date 18 May 2021. If the application was ‘made’ on 13 May 2021 an extension of time is not necessary. The Criminal Practice Rules 1999 (Qld), as the title suggests, apply to the criminal jurisdiction of the District Court.^[26] The rules provide for the bringing and filing of applications in a criminal proceeding. A written application by a party to reopen a sentence proceeding, as this was,^[27] is required to be filed in the registry.^[28] A document that is required to be filed under the Rules may be filed electronically. A document filed electronically is taken to have been filed on the day it is received if it is received before 4.30 pm that day.^[29]
33. [33]
    As this application was filed electronically and received by the registry before 4.30 pm on 13 May 2021, it was made within time and an extension of time is not necessary.^[30]

Should the sentence proceeding be reopened and a different sentence imposed?

34. [34]
    The applicant’s offending was serious – he used a knife to stab another young man during a fight, causing the victim serious injury. The report of a psychologist tendered at the sentence proceeding gave rise to a concern that the applicant’s ‘psychological makeup and other difficulties probably increase the likelihood of [him] behaving in a manner that is reckless and impulsive in the future’.^[31] It was accepted on behalf of the applicant that an order for supervised release from custody was appropriate.
35. [35]
    There were matters in the applicant’s favour. He was a young man who had no prior convictions when he was sentenced. His plea was timely and came after the prosecution increased the charge from unlawful wounding to one of unlawfully doing grievous bodily harm. The applicant had been held in custody for 254 days before sentence. There was no reason not to treat this period of about eight months as time already served.
36. [36]
    It was important at sentence to balance the need for deterrence and denunciation with the promotion of the applicant’s rehabilitation. At the time of sentence, I thought this would be best achieved by the sentence I imposed – imprisonment for four years with parole eligibility after serving 14 months. As I said at the time, the earlier than usual parole eligibility date was intended to reflect matters in mitigation, including the applicant’s plea. What I did not know at the time was that the applicant, in practical terms, could not have his parole application considered in time. This rendered nugatory a significant component of the sentence and had the potential to take from the applicant the benefit of pleading guilty.
37. [37]
    In the circumstances I was of the clear view that the sentence should be reopened and a different sentence – one that better reflected the facts as they existed – should be imposed. The sentence that best reflected these facts was the one proposed by the applicant. That is, to take into account but not declare the time in pre-sentence custody, sentence the applicant to imprisonment for three years and fix a parole release date of 1 October 2021. The effect of this sentence is that the applicant faces a ‘head’ sentence of a little more than three years and eight months but will be released to parole after he has been in custody for 14 months. This is a somewhat more lenient sentence than that originally imposed. But it is one that is justified in the unusual circumstances of this case. Finally, I would note that the prosecutor agreed that if the sentence proceeding was reopened, this was an appropriate sentence to impose.
38. [38]
    It was for these reasons that on 6 August 2021 I resentenced the applicant. To give effect to this decision the formal orders will be:

1. The sentence proceeding of 13 and 15 April 2021 is reopened;
2. The applicant is resentenced;
3. Set aside the orders made on 13 and 15 April 2021;
4. The applicant is sentenced to imprisonment for three years, to commence on 13 April 2021, and the date for the applicant’s release on parole is fixed as 1 October 2021;
5. It is declared the applicant had been held in presentence custody for 254 days between 2 August 2020 and 12 April 2021;
6. Pursuant to section 159A(3B) of the Penalties and Sentences Act 1992 (Qld) none of this time is taken to be time already served under the sentence.