R v Ronkovich [2007] QCA 193

Judgment (23 paragraphs)

[1]

The applicant made a number of complaints in his written submissions about the exercise of sentencing discretion, which have no substance:

[2]

•

he complained that he was not given credit for his guilty plea when he clearly was;

•

he complained that he did not receive the sentence he expected to receive on the basis of advice from his legal advisers. This is not a ground of appeal that can suggest that the sentencing discretion miscarried;

•

he asserted that the judge erred by fixing his parole eligibility date but his Honour acted in accordance with his powers under s 160D of the Penalties and Sentences Act 1992 (Qld) ("PSA") in fixing an eligibility date;

•

he complained of factual inaccuracies in the prosecutor's submissions but those facts were not disputed by his experienced defence counsel; and

•

he reiterated all the personal factors in his favour but those factors, including his employment prospects and the pregnancy of the partner, were referred to by the sentencing judge.

[3]

[17] In oral submissions he complained that he has been told by the correctional authorities that his parole eligibility date has been cancelled by s 160E of the PSA. That cannot be the case because that section deals with circumstances in which an existing parole release date or parole eligibility date is cancelled when an offender is sentenced for another offence or the court fixes another parole release date or parole eligibility date. That is not the case here. This does not suggest that the sentencing discretion miscarried.

[4]

[18] 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.

[5]

[19] 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. This is because the ameliorating order given by the judge to take account of the applicant's guilty plea in accordance with s 13 of the PSA and personal factors in his favour, is unable to be given effect. In R v Hood[2] this court held:

[6]

"There is a foreseeable risk that effect will not be given to the recommendation, for a reason beyond Mr Hood's control[3] and that accordingly the recommendation does not in reality qualify as a reduction of sentence, contrary to the assumption of the sentencing judge. In R v Mackenzie[4] this Court held the error in the assumption enlivened the power under s 188(1)(c) of the Act; in R v Daly[5] that the error meant the sentencing discretion had miscarried, and[6] that it meant some other sentence was warranted in law and should have been passed."

[7]

[20] In my view, this is a case falling within s 188(1)(c) of the PSA which provides that:

[8]

(1) If a court has in, or in connection with, a criminal proceeding, including a proceeding on appeal -

[9]

[10]

the court, whether or not differently constituted, may reopen the proceeding."

[11]

[21] The sentence was 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 reasonably be considered for release 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.[7] The sentencing discretion therefore miscarried.

[12]

[22] The learned sentencing judge intended that the applicant should be able to be released from custody on 6 December 2007 and thereafter be subject to supervision. That can best and, indeed, is only likely to be achieved by imposing a sentence of three and a half years imprisonment on the count of grievous bodily harm suspended after he has served 10 months, i.e. on 6 December 2007, and imposing a concurrent period of imprisonment on the count of sexual assault for a similar period to the time which he will spend in prison before his sentence is suspended followed by probation.[8]

[13]

[23] I would grant the application for leave to appeal and allow the appeal. The sentence of three and a half years imprisonment for grievous bodily harm (count 1) should be retained. The sentence should otherwise be varied so that the sentence of three and a half years imprisonment on count 1 be suspended after the applicant has served 10 months (i.e. 6 December 2007) with an operational period of four years. The sentence imposed on count 2 should be replaced with a sentence of 10 months followed by a period of probation of two years.

[14]

3. Original sentence set aside and in lieu thereof:

[15]

(a) Vary the sentence of three and a half years imprisonment on count 1 to be suspended after 10 months with an operational period of four years.

[16]

(b) Substitute the sentence of three and a half years imprisonment on count 2 with a sentence of 10 months imprisonment followed by a probation order of two years.

[17]

[1] [2006] QCA 521.

[18]

[2] [2005] QCA 159; [2005] 2 Qd R 54 at 60-61, per Jerrard JA.

[19]

[3] R v Maxfield [2002] 1 Qd R 417 at 423.

[20]

[4] [2002] 1 Qd R 410.

[21]

[5] [2004] QCA 385 at [6] and [9].

[22]

[7] cf R v Cassar, ex parte Attorney-General [2001] QCA 300; [2002] 1 Qd R 386.