R v Atasoy

This case was a successful sentence appeal where the applicant demonstrated a specific error. A noteworthy aspect of this case was how Flanagan JA (with whom Bond JA and Crow J agreed) approached declaring presentence custody under s 159A(1) Penalties and Sentences Act 1992. The applicant had submitted that it was open to make a partial declaration in circumstances where he intended to plead not guilty to other charges for which the presentence custody was also declarable. The respondent submitted that the presentence custody should be fully declared and referred to the principle in R v Fabre [2008] QCA 386. The Court agreed with the respondent. Presentence custody should be declared at the earliest opportunity. Leave to appeal against sentence was granted and the appeal was allowed, however, when resentencing the applicant, all 549 days of declarable presentence custody was declared as time served under the sentence.

Bond and Flanagan JJA and Crow J

9 June 2023

Background

The applicant entered pleas of guilty to unlawful possession of a motor vehicle (Counts 1 and 2); possessing a category D weapon (Counts 3 and 7); possessing a category H weapon (Counts 4, 5, 6 and 8); possessing a dangerous drug (Count 9); and possessing a dangerous drug in excess of 50 grams (Count 10). [2]. The offences broadly related to the unlawful possession of two vehicles and a number of prohibited weapons and dangerous drugs seized inside one of those vehicles. [12]–[30]. The sentencing judge imposed a head sentence of three years’ imprisonment on Counts 3 to 8 and lower concurrent terms of imprisonment on the remaining counts. [3]. The parole release date was fixed as at the date of sentence. [4]. The applicant had spent 549 days in presentence custody, but the sentencing judge only declared 205 days as time served under the sentence. [5].

Whether the sentencing discretion miscarried  

Justice Flanagan (with whom Bond JA and Crow J agreed) held that the sentencing discretion miscarried. [11], [47]. The sentencing judge had mistaken the facts when making findings about the nature and extent of the applicant’s possession of prohibited weapons and dangerous drugs. [10]. The sentencing judge had, incorrectly, found that the statement of facts showed that the applicant knew the nature of the weapons; and that his possession of the dangerous drugs was for “personal use”. [31]. There were no such statements in the facts and the applicant was to be sentenced on the basis that he was in deemed possession of the prohibited weapons and dangerous drugs: see Weapons Act 1990 s 163(3A) and Drugs Misuse Act 1986 s 129(1)(c). [32], [36]–[41]. There is an important distinction between a “deemed possession” and a “knowing possession”: see [42]–[46].

Whether presentence custody should be partially or fully declared

When resentencing the applicant there was legal argument about whether the 549 days the applicant had spent in presentence custody should be partially or fully declared as time served under the sentence. [60]. The sentencing judge had only made a partial declaration of 205 days, presumably, because the applicant’s counsel before the sentencing judge had told the Court that he had been charged with other offences for which he intends to plead not guilty; and the presentence custody was also declarable in relation to those other offences. [61]. The respondent submitted that when resentencing the applicant, the presentence custody should be fully declared as time served under the sentence. [61]. This was on the basis that, as a matter of principle, presentence custody ought to be declared at the earliest opportunity: R v Fabre [2008] QCA 386 (the “Fabre principle”). [61].

The applicant argued that the Fabre principle no longer applied having been decided prior to amendment of s 159A(1) Penalties and Sentences Act 1992 by the enactment of the Justice and Other Legislation Amendment Act 2020: see discussion in R v Whitely [2021] QSC 154; (2021) 8 QR 283; and R v Wilson [2022] QCA 18; (2022) 10 QR 88. [63]–[64]. Justice Flanagan (with whom Bond JA and Crow J agreed) held that in circumstances where the applicant is facing further charges for which he intends to plead not guilty, the Fabre principle applied with “full force”. [65]. If the applicant were to be acquitted of those charges, he would lose all benefits of the undeclared presentence custody. [65]. Declaring presentence custody at the earliest opportunity is the “orthodox approach” in circumstances where a person is intending to plead not guilty to other charges. [65].

Disposition

The application for leave to appeal against sentence was granted; the appeal was allowed; the head sentence imposed on Counts 3 to 8 and the presentence custody declaration was set aside; and in lieu thereof a head sentence of two years’ imprisonment was imposed and 549 days of presentence custody was declared as time served under the sentence. [1], [73]–[74].

D Kerr