A man’s appeal against a prison sentence was solely responsible for the delay in his bid for early release from jail on parole, a court has ruled.
A Court of Appeal decision in Brisbane published earlier this month revealed that a delay in the parole application for release from prison by 24-year-old Wayne Wolmby was caused by his own decision to file a notice seeking leave to appeal against his sentence.
The court had been told Wolmby, 24, was sentenced to two years’ imprisonment after pleading guilty in the Cairns District Court on 27 July last year to one count of riot while armed with a dangerous weapon and causing property damage.
Court of Appeal President Walter Sofronoff, in a five-page written decision, said the “agreed facts” submitted at Wolmby’s sentencing spoke of his involvement in a riot after a funeral for an man allegedly murdered during a brawl at Aurukun, in Far North Queensland.
“On 1 January 2020, there was a brawl at Aurukun involving members of two families,” Justice Sofronoff said. “A man who was a member of one of these families was stabbed to death.
“His killers … turned themselves into police. This intensified the feud.
“There was a funeral held at Aurukun Cemetery on the afternoon of 28 February 2020. The deceased was associated with the families of (the two accused killers).”
Justice Sofronoff said that, after the funeral, members of the deceased man’s family “formed a riotous group of about 30 people” on the road that led from the cemetery to the township.
The court was told Wolmby was one of the group of the rioters, resulting in District Court Judge Dean Morzone QC sentencing him to two years’ jail for his offending behaviour.
During the hearing, Judge Morzone noted Wolmby had already served 325 days in pre-sentence custody and ordered he be considered immediately eligible to apply for parole.
Wombly subsequently applied to the Court of Appeal seeking leave to appeal against the sentence on the grounds it is was manifestly excessive.
Justice Sofronoff said that, as a result of that application, Wolmby’s eligibility for immediate parole was suspended until the matter could be resolved by the court.
“When sentencing (Wolmby), Judge (Morzone) envisaged that in the circumstances … (Wombly’s) parole application would be considered promptly within about 25 days (of sentencing),” he said.
“However, (Wolmby) applied for leave to appeal and this had the effect by reason of statute that consideration of his application for parole was suspended until his application for leave to appeal against sentence had been dealt with.
“In the meantime, the possibility of speedy consideration of his parole, something that existed at the time of sentence, disappeared and now the applicant must join the queue of other applicants for parole for his application to be considered.”
In a unanimous decision supported by Justices Debra Mullins AO and Phillip Morrison, Wolmby’s application for leave to appeal was refused.
Justice Sofronoff said: “There is no arguable case here that the sentencing discretion miscarried and leave to appeal should be refused.”
Read the decision.
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