Queensland Judgments
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The Queen v Whitely

Unreported Citation:

[2021] QSC 154

EDITOR'S NOTE

The question arose in the course of the defendant’s sentencing hearing as to whether, as a result of the recent amendment to s 159A(1) Penalties and Sentences Act 1992, it was open to the Court to formally declare time an offender has been held in custody, even where that is in respect of a previous sentence of imprisonment. Justice Bowskill held that the answer must be yes, but that the discretion under s 159A(1) is very broad: the sentencing judge retains a discretion whether or not to declare all, or some, or any of that time. Critically, her Honour also took judicial notice of the “extensive delays” currently experienced by applicants for parole.

Bowskill J

22 June 2021

Issue

The defendant pleaded guilty to one count of trafficking in a dangerous drug and five related summary offences on 18 June 2021. [1]–[2].

In the course of the sentence hearing on that day, an issue arose as to the proper construction of s 159A(1) Penalties and Sentences Act 1992 (“PSA”), following amendments that had been made in 2020 removing the words “and for no other reason” (which previously appeared after the underlined words below). [6]. Section 159A(1) PSA now provides:

“If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders.”

Justice Bowskill explained at [9]:

“Prior to its amendment, there was no question of the time the offender had served, under a sentence of imprisonment previously imposed, being the subject of a declaration of time served under s 159A, in respect of other offences. Although, consistent with the totality principle, it could be taken into account to the extent considered appropriate”.

The question before her Honour was whether, as a result of the amendment to s 159A(1), it is now open to the Court to formally declare time the offender has been held in custody, even where that is in respect of a previous sentence of imprisonment. [10].

Consideration

Justice Bowskill considered that there are two questions which arise in answering that ultimate question: [12]:

1.  The first question is whether any of the time served by the defendant is time the defendant has been “held in custody in relation to the proceedings for the offence(s)” which are presently before the Court for sentence. [13].

2.  The second question is whether, on the proper construction of s 159A(1), it is open to the Court to make a declaration in respect of that time. [15].

In answer to both questions, her Honour considered that the answer is yes. [14], [15]. In relation to the second question, her Honour explained at [17]–[19] that, s 159A(1), as it now provides, “is very broad”:

“It extends to a power to formally declare time served even where that time is served under a previously imposed sentence”.

“The qualifying fact … is that the time must be time the offender was held in custody in relation to proceedings for the offence”.

The sentencing court retains a discretion whether or not to declare all, or some, or any of that time.

Considerations as to the various causes of an offender serving time in custody remain relevant to the exercise of that discretion.

It obviates the need for courts to ameliorate, quite to the same extent, the otherwise appropriate head sentence, which has the positive consequence of not distorting the sentence imposed.

Judicial notice of extensive delays with parole board

In sentencing the defendant, her Honour also expressly took “judicial notice of the extensive delays which are currently experienced by applicants for parole”. [38]. Her Honour noted that if she were to fix a date for parole eligibility in four months’ time, her Honour’s understanding of the delays was that the defendant “could end up serving another year” before his application for parole is considered. [38].

Z Brereton of Counsel

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