R v Sheldon[2008] QSC 144

SUPREME COURT OF QUEENSLAND

[1] This application seeks to reopen a sentence of imprisonment imposed on the applicant in this Court in July 2007 for grievous bodily harm.

[2] Section 188(5)(b)(i) of the Penalties and Sentences Act 1992 (“the Act”) provides that such an application is to be made within 28 days after sentence or "within any further time the Court may allow."

[3] The first question  is whether an extension of time should be granted to permit the application filed on 2 April to be brought.

[4] The applicant had been charged with several offences.  These included attempted murder and an alternative of intentionally doing grievous bodily harm. The jury acquitted him of those charges but convicted him of doing grievous bodily harm without an intention to bring about that result. 

[5] At the outset of the trial, the applicant had pleaded guilty to three other offences. During the sentencing, the applicant's barrister referred to those guilty pleas; and appropriate recognition was given to them in the sentencing.  The applicant complains, however,  his offer on the morning of the trial to plead guilty to the offence of which he was convicted by the jury - an offer rejected by the Prosecution - was neither mentioned by the Judge in his remarks nor reflected in a reduced sentence to take account of the offer, contrary to principle: R v. Marshall [1995] 1 Qd R 673.

[6] So much is true. But the Judge's omission to advert to that offer was because he was not informed of it. 

[7] Nonetheless, it is said that the sentence imposed in ignorance of that matter was "decided on a clear factual error of substance" (see s.188(1)(c)of the Act) and that the sentence ought therefore to be reopened.

[8] Unless that proposition is seriously arguable, leave to bring the application ought to be refused.

[9] No mention was made of an offer to plead guilty in the sentencing proceeding. No erroneous facts were before the sentencing Judge. And, on the information before him, no error of fact influenced the decision as to sentence.

[10] To demonstrate "factual error", the applicant is driven to adduce information additional to that put before the Judge: in particular, evidence of the applicant’s offer to plead to the lesser offence. This fact, withheld from the judge, was known to the applicant and his barrister at the time of the sentencing.

[11] Proof of such an additional fact does not demonstrate that the sentence was decided on a "clear factual error of substance" within the meaning of s.188(1)(c) of the Act.

[12] Section 188(1)(c) was inspired by s.147A(2) of the Justices Act 1886:  R v. Davis (1999) 109 A Crim R 314, 322 ff. That provision conferred power on a Magistrate to reopen an order where it was "based on an error of fact" -  the kind of causal connection that s.188(1)(c) requires between the sentence decided upon and a "factual error".

[13] Section 147A was interpreted as not envisaging the admission of fresh evidence to demonstrate that a sentence was founded on an incorrect view of pertinent facts.

[14] In Boyd v. Sandercock [1990] 2 Qd R  26, the meaning of section 147A arose in the context of a sentencing where the Magistrate was told incorrectly, that the offender had not been convicted of a similar offence. Later, the Magistrate reopened the proceedings. The offender appealed.  Thomas J, with whom Connolly and Ambrose JJ agreed, said (at 28): 

"A court is bound to decide a case on the evidence before it.  The penalty that was imposed was entirely in conformity with both the facts and the law.  All that happened was that the prosecutor failed to provide evidence to the court of a relevant fact.  The consequence of this should be no different from that in any other case where a party fails to call relevant evidence.  It makes no difference whether the proceedings follow a plea of guilty or not guilty.  The court is to decide the case on the evidence before it.

...

the order contains no error of fact, but can it be said that it was “based on...an error of fact”?..[.T]he reference...is to facts already before the court in the proceedings..[.T]his particular...penalty was not “based on an error of fact”...

[15] In R v. Tommekand [1996] 1 Qd R 564, 567, the Chief Justice and McPherson JA, with whom  Mackenzie J relevantly agreed, said of section 147A:

“the section does not authorise a reopening to enable  a... penalty to be reconsidered on the basis of  additional evidence going to the merits which was not presented during the original hearing...”

[16] See also R v. Thorpy[1996] 2 Qd R 77, 79.

[17] There is every justification for interpreting s.188(1)(c) in like manner.

[18] So the contention that the sentence was “decided” upon a “factual error” is not seriously arguable. 

[19] The extension of time to enable the application to be heard is therefore refused.