R v Braeckmans

In this case the Court of Appeal allowed an appeal against sentence. In doing so the Court clarified whether it is open for a sentencing judge to declare presentence custody as time already served in circumstances where some of the terms of imprisonment were required to be served cumulatively with other terms of imprisonment by operation of s 156A(2) Penalties and Sentences Act 1992 (the “PSA”). The Court held that ss 156A(2) and 159A(1) of the PSA must be construed as intending to give effect to “harmonious goals”. As such declaring pre-sentence custody as time served, which had the effect of making cumulated terms of imprisonment “in part” concurrent terms of imprisonment, was not open to the sentencing judge. In any event the presentence custody culd be taken into account. This could be achieved by moderating the head sentence that was otherwise appropriate in all the circumstances.

Sofronoff P and McMurdo JA and Kelly J

4 March 2022

Background

The applicant was dealt with on 6 November 2020 in relation to a number of offences committed during the course of two home invasions (the “current offences”). [2]. A term of nine years’ imprisonment was imposed on the count of robbery in company with personal violence, which the sentencing judge had identified as the appropriate count for the imposition of the head sentence. [3].

The applicant was on parole at the time he had committed the current offences. [4]. The applicant was on parole as a result of being dealt with in relation to other offences (the “previous offences”). [4]. The applicant’s parole eligibility date was 31 May 2018. [4]. His full time release date was 31 May 2021. [4].

Some of the offences were committed whilst on parole. [11]. The sentencing judge ordered that all of the terms of imprisonment for the current offences be served concurrently with each other, but cumulatively with the terms of imprisonment imposed for the previous offences. [3], [5]–[6].

Presentence custody

The applicant had been returned to custody on 10 October 2019 as a result of being charged with the current offences. [21]. As such he was on remand for 392 days prior to being sentenced for the current offences, whilst also serving the term of imprisonment imposed for the previous offences (the “pre-sentence custody”). [21].

The applicant had asked for “full credit” for the presentence custody in the form of a presentence custody declaration under s 159A(1) of the PSA. [22]. However, the sentencing judge was only persuaded to partially declare 153 days of the presentence custody. [22].

The “fundamental error” in the application of s 159A(1) of the PSA

A sentencing judge is empowered under s 159A(1) of the PSA to make a presentence custody declaration in relation to time served while on remand, regardless of whether the offender was also serving a sentence of imprisonment at the same time: see R v Wilson [2022] QCA 18 and R v Whitely [2021] QSC 154. [25]. However, this case presented an issue that did not arise in those cases. [26].

This was because there was a “tension” between s 156A(2) and 159A(1) of the PSA. [29]. Whilst the sentencing judge undoubtably had a discretion to make a pre-sentence custody declaration under s 159A(1), the sentencing discretion was constrained by s 156A(2) of the PSA to the extent that some of the terms of imprisonment ordered in relation to the current offences required cumulation. [29]–[30].

The PSA must be construed as intending to give effect to “harmonious goals”. [30]. For this reason the discretion contained in s 159A(1) must be exercised consistently with the requirements of the PSA, which includes the “specific requirement” of s 156A(2) that, in effect, required the sentencing judge to cumulate all of the terms of imprisonment for the current offences. [30].

The pre-sentence custody declaration made by the sentencing judge had the effect that cumulated terms of imprisonment became, in part, concurrent terms of imprisonment. [31]. As such the sentencing judge erred in making the presentence custody declaration. [31]. The sentencing judge ought to have declared that no time was taken to be time served pursuant to s 159A(3B)(c) of the PSA. [31].

Taking into account the presentence custody

Notwithstanding the error made by the sentencing judge in making a pre-sentence custody declaration, it was appropriate for the pre-sentence custody to be taken into account. [38]. This could be achieved by moderating the head sentence that was otherwise appropriate in all the circumstances. [38].

D Kerr