Commonwealth Director of Public Prosecutions v CCQ [2022] QCA 128

SUPREME COURT OF QUEENSLAND CITATION: Commonwealth Director of Public Prosecutions v CCQ [2022] QCA 128 PARTIES: COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (appellant) v CCQ (respondent) FILE NO/S: CA No 61 of 2020 SC No 1471 of 2019 DIVISION: Court of Appeal PROCEEDING: Sentence Appeal by Director of Public Prosecutions (Cth) – Further Orders ORIGINATING COURT: Supreme Court at Brisbane – Date of Sentence: 18 February 2020 (Wilson J) DELIVERED ON: 22 July 2022 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers JUDGES: Morrison JA and Crow J ORDERS: 1. Order number 2 made on 22 January 2021 is amended by deleting the words “and that parole eligibility be fixed at 18 February 2026”. 2. Order number 3 made on 22 January 2021 is amended by adding, after the words “16 years”, the words “in respect of Count 1, commencing 18 February 2020”. 3. Order number 4 made on 22 January 2021 is amended by deleting the words currently in that and substituting the following words: “Pursuant to s 19AB(1) of the Crimes Act 1914 (Cth), a non-parole period of 10 years for the Commonwealth offences is fixed. Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), 89 days of pre-sentence custody from 18 November 2017 to 1 December 2017 and between 5 December 2019 and 17 February 2020, is declared as imprisonment already served under the sentence in respect of all offences. The Chief Executive (Corrective Services) is to be advised in writing of that declaration and its details”. -- 1 of 3 -- 2 CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT ON APPEAL – OTHER MATTERS – where this Court allowed an appeal by the Commonwealth Director of Public Prosecutions and resentenced the respondent – where the orders of this Court on the resentence did not advert to the issue of declarable pre- sentence custody – where the orders did not account for the 89 days of imprisonment already served – where this was an inadvertent error – where the Commonwealth Director of Public Prosecutions applies to amend the orders to take appropriate recognition of the pre-sentence custody – where legal representatives for the respondent are in agreement with the amended orders sought – whether this Court should vary the orders as submitted Commonwealth Director of Public Prosecutions v CCQ [2021] QCA 4, related R v Richardson (No 2) [2010] QCA 278, cited COUNSEL: L K Crowley QC, with D Whitmore, for the appellant M F Bonasia for the respondent SOLICITORS: Director of Public Prosecutions (Commonwealth) for the appellant George Criminal Lawyers for the respondent [1] MORRISON JA: On 22 January 2021 this Court allowed an appeal by the Commonwealth Director of Public Prosecutions against the sentence imposed on CCQ. He was resentenced to 16 years imprisonment with a parole eligibility date fixed at 18 February 2030, being 10 years from the date of his original sentence.1 [2] The sentence originally imposed on 18 February 2020 included an order pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), that 89 days imprisonment by way of pre-sentence custody be declared as time already served under the sentence.2 [3] The orders of this Court on the resentence did not advert to the issue of declarable pre-sentence custody. In specifying a date for parole eligibility 10 years from the date of the sentence, those orders did not account for the 89 days of imprisonment already served. This was an inadvertent error. [4] The Commonwealth Director of Public Prosecutions applies to amend the orders to take appropriate recognition of the pre-sentence custody. There is no question of the inherent jurisdiction of this court to vary orders if necessary to overcome a slip or accidental omission.3 [5] The only orders that need amending are orders 2 to 4. The effect was explained by Mr Crowley QC, Counsel for the CDPP, and follows below. [6] The amendment to order 2 is to remove the words “and that parole eligibility be fixed at 18 February 2026”. The original sentence did not refer to that date, and it does not account for the time in pre-sentence custody. 1 Commonwealth Director of Public Prosecutions v CCQ [2021] QCA 4. 2 That period of 89 days was from 18 November 2017 to 1 December 2017, and 5 December 2019 to 17 February 2020. 3 R v Richardson (No 2) [2010] QCA 278 at [5]. -- 2 of 3 -- 3 [7] The amendment to order 3 is to include the words “in respect of Count 1”. Count 1 was the original Commonwealth offence to which the total effective head sentence was ordered. The amendment makes it clear that the original sentence order in respect of Count 8 (the State offence to which a non-parole order under s 19AB(1) of the Crimes Act 1914 (Cth) cannot apply) is otherwise affirmed. [8] The amendment to order 4 is to add the declaration as to pre-sentence custody and to remove the date at which the non-parole period expires as it is not necessary to specify that date. [9] Legal representatives for the respondent are in agreement with the amended orders sought. [10] I therefore propose that the following orders be made: 1. Order number 2 made on 22 January 2021 is amended by deleting the words “and that parole eligibility be fixed at 18 February 2026”. 2. Order number 3 made on 22 January 2021 is amended by adding, after the words “16 years”, the words “in respect of Count 1, commencing 18 February 2020”. 3. Order number 4 made on 22 January 2021 is amended by deleting the words currently in that and substituting the following words: “Pursuant to s 19AB(1) of the Crimes Act 1914 (Cth), a non- parole period of 10 years for the Commonwealth offences is fixed. Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), 89 days of pre-sentence custody from 18 November 2017 to 1 December 2017 and between 5 December 2019 and 17 February 2020, is declared as imprisonment already served under the sentence in respect of all offences. The Chief Executive (Corrective Services) is to be advised in writing of that declaration and its details”. [11] CROW J: I agree with Morrison JA. -- 3 of 3 --