A Brisbane judge has ordered the immediate release of a prisoner facing the likelihood of serving all of a 12-month jail term – despite being granted immediate parole eligibility — due to an “at least six month’’ delay in Parole Board Queensland assessments.
Brisbane District Court Judge Ray Rinaudo today set aside a 12-month jail term, with immediate eligibility for parole, imposed by a magistrate on a man, identified only as GSB, on 12 May 2021.
GSB had pleaded guilty in the Richlands Magistrates Court to one count of driving a motor vehicle while under the influence of liquor and contravening a domestic violence order on 25 February 2021.
The court was told GSB’s offending involved driving to his former partner’s home while heavily intoxicated and yelling abuse at house while she was absent from the property.
GSB, who had spent 76 days in custody when he pleaded guilty to the offences, was sentenced to two months’ imprisonment for the UIL offence and 12-months’ jail for the domestic violence order breach with a declaration for immediate parole eligibility.
His driver’s licence was also suspended for two years.
GSB appealed the magistrate’s decision under Section 222 under the Justices Act 1886 – citing three grounds why the sentence imposed was excessive.
“Firstly, (GSB) submits that the sentence is not justified by the nature of the (his) offending,” Judge Rinaudo said. “(He) argues that the offending was at the lowest end of the scale for offences of this nature, as (his) actions were, in effect, to yell at an empty house.
“(GSB’s) second argument is that the learned magistrate, in determining the appropriate sentence, placed undue weight on the appellant’s criminal history.
“(GSB’s) final point is that, as the learned magistrate imposed a parole eligibility date, rather than a parole release date, (GSB) is at risk of serving most of the term of imprisonment, prior to his application for parole being assessed, due to the current delays being experienced in relation to parole applications.
“(GSB) submits this would be manifestly excessive.”
Judge Rinaudo said GSB, despite having lodged a parole application on 25 May 2021, had been advised by Parole Board Queensland his application would not be determined until November or December (2021).
“This would see (GSB) serving most of the sentence … (even) the respondent (Queensland Police Commissioner Katarina Carroll), having regard to the lengthy delays in parole applications, (submits GSB) ought to be released, as he had served sufficient time in custody,” he said.
The court was told a transcript of the magistrate’s sentencing remarks showed that he “had made up his mind” to jail GSB despite defence submissions for wholly or partially suspended prison term for the domestic violence breach:
“His Honour the magistrate: ‘Look. I wouldn’t consider today a term of suspended imprisonment. There is a clear need in your case (GSB) to show you, again, that you cannot continue to offend in this matter. You might think [the offending] is at the lower end of the scale, but the Court does not hold the same view. Community based orders, fines or suspended imprisonment are not considered appropriate in all the circumstances in relation to sentencing of you today.’”
Judge Rinaudo, in granting GSB’s appeal, said: “In my view the sentencing magistrate fell into error by imposing a sentence which was manifestly excessive given the nature of the offending on this occasion, failing to have proper regard to the mitigating factors, placing too much weight on the appellant’s history, and that the effect of the sentence, because of parole board delays, was that the appellant was likely to serve almost all of the 12-month term imposed.
“I note (GSB’s) submission that the appropriate sentence would be to sentence the appellant to time served, namely 137 days (since his sentencing and subsequent appeal).
“It seems to me that to give effect to the need for the (GSB) to undertake rehabilitation to address underlying issues with alcohol abuse that a period of suspended sentence should be imposed.
“This is in line with submissions made to the sentencing magistrate that ‘… perhaps four to six
months, suspended after serving perhaps another month or so with a long operational
period would be a viable outcome’.”
Read the decision.