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[1998] QCA 93
Court of Appeal (Qld)
1998-05-15
Before McPherson J, Davies J, Shepherdson J, Mr J
Original judgment source is linked above.
The application and appeal will be allowed to the extent of varying the sentence of imprisonment for 5 years imposed in respect of count 1 in the indictment by adding a recommendation that the applicant be considered for parole after he has served two years of that sentence. The declaration here in relation to the sentence on count 2 was made in deference to the mandatory provisions of s.161(3) of the Act. As we see the matter, it cannot have any practical effect on the sentence that will be served in this case, and there is therefore no reason why it should be disturbed. The period of 245 days of pre-sentence custody has, however, as these reasons show, been allowed for in the recommendation for parole which has now been added to the sentence below.
R
Skedgwell [1998] QCA 93
Before s.161(1) was enacted, it was practice in sentencing to take account of a period of pre-sentence custody as going to some extent in reduction or mitigation of the penalty being imposed. Sometimes this was done by reducing the head sentence; on other occasions by accelerating the recommended date for parole. There was some debate whether, when the first of these methods was adopted, the allowance for the period of pre-sentence custody should not be doubled. That was because, if that period of custody had been served as part of the sentence rather than before it was imposed, the prisoner would, to that extent, have been closer to the statutory half-way mark at which he would or could first be considered for parole. On that approach, a day in custody before sentencing was for some purposes treated as the equivalent of two days after sentence. See, generally, R. v. Leeth [1991] 1 Qd.R. 391; R. v. Marshall [1993] 2 Qd.R. 307; R. v. Wishart & Jenkins [1993] QCA 563; [1994] 2 Qd.R. 421, 428.