Gomez v The Queen [2002] FCAFC 262 (27 August 2002)

Last Updated: 28 August 2002

FEDERAL COURT OF AUSTRALIA

Gomez v The Queen [2002] FCAFC 262

CRIMINAL LAW - sentencing - application to appeal against sentence imposed on 7 October 1999 for offence committed on parole - whether sentencing judge wrongly assumed that sentence would not revoke parole - whether assumption resulted in manifest injustice or sufficiently tainted sentence with error.

Crimes Act 1900 (ACT), s 126, s 403

Parole Act 1976 (ACT), s 22

FRANCISCO JAVIER GOMEZ v THE QUEEN

A63 of 2001

MILES, O'LOUGHLIN and DOWSETT JJ

27 AUGUST 2002

CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 63 OF 2001

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	FRANCISCO JAVIER GOMEZ APPLICANT
AND:	THE QUEEN RESPONDENT
JUDGES:	MILES, O'LOUGHLIN and DOWSETT JJ
DATE OF ORDER: DATE OF JUDGMENT:	15 MAY 2002 27 AUGUST 2002
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1. The application be refused.

2. There be no order for costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 63 OF 2001

BETWEEN:	FRANCISCO JAVIER GOMEZ APPLICANT
AND:	THE QUEEN RESPONDENT

JUDGES:	MILES, O'LOUGHLIN and DOWSETT JJ
DATE OF ORDER: DATE OF JUDGMENT:	15 MAY 2002 27 AUGUST 2002
PLACE:	CANBERRA

REASONS FOR JUDGMENT

THE COURT:

1 This was an application for leave to appeal against the severity of a sentence imposed by the Supreme Court of the Australian Capital Territory (Higgins J) on 7 October 1999. The application was heard on 15 May 2002 and refused with reasons to be given later. The application was associated with an appeal dismissed by the Court on the same day (A2/02) also with reasons to be given later. We have published the reasons in that appeal earlier this day. These are the reasons for the refusal of the application.

2 The applicant was found guilty after trial of two offences of using a false instrument contrary to s 126(2) of the Crimes Act 1900 (ACT) (the Crimes Act). They were charged as the ninth and tenth counts on the indictment. The maximum sentence for such an offence is 10 years imprisonment. The offences involve the fraudulent use of credit cards. His Honour ordered, pursuant to s 403(1)(b) (formerly s 556B(1)(b)) of the Crimes Act, that the applicant be sentenced on the ninth count to three months' imprisonment but gave a direction to the effect that the offender be released upon giving security by way of recognizance, the terms of which were specified, forthwith. We understand that the applicant entered into the recognizance and was released accordingly on the same day as he was sentenced.

3 The sentencing Judge was well aware that at the time of the offence and still at the time of sentence the applicant was on parole. He had been released on parole on 30 August 1996 after being sentenced on 31 August 1990 to ten years imprisonment for various property offences and possession of heroin, with a non-parole period of six years.

4 It may be that the sentencing judge, as well as counsel, was under the impression that the sentence of imprisonment for three months, if accompanied by a direction for release forthwith upon entering into a recognizance in accordance with s 403(1)(b), was not a sentence of imprisonment for the purpose of s 22(2) of the Parole Act 1976 (ACT) and would not result in revocation of parole. For the reasons we have given in the associated appeal already referred to, that impression would have been wrong.

5 Accordingly, so it is submitted, the sentence of imprisonment for three months, which was intended to be non-custodial, has had unjust and unintended consequences resulting ultimately in the substantial postponement of the date on which the ten year sentence is due to expire. At the time of being sentenced to the term of ten years, it was expected that that term would expire on 30 August 2000. It is submitted that the revocation of parole by the sentence of three months set in train a series of events which have resulted in what was a ten year sentence imposed on 31 August 1990 being now anticipated to expire on 17 October 2004.

6 However it cannot be overlooked that the repeated breach by the applicant of the conditions of parole, with consequent further revocations of parole from time to time have been substantial contributors to the postponement of the anticipated expiry date to 17 October 2004. We need only note that the offence of possession of heroin, for which he was placed on a recognizance by the ACT Magistrates Court on 15 November 1999, occurred whilst on the parole originally anticipated to expire on 30 August 2000.

7 In any event, the three months sentence for offences of dishonest use of credit cards whilst on parole would have been well within the sentencing judge's discretion, whether or not accompanied by a direction for release on recognizance.

8 The application is well out of time and an appeal, if granted, would have no chance of success. The sentence is not sufficiently tainted by error. There is no manifest injustice. There is no question of principle.

9 The application was, for the foregoing reasons, refused. We made no order for costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 27 August 2002

Counsel for the applicant: Mr R Livingston

Solicitor for the applicant: Legal Aid Office (ACT)

Counsel for the respondent: Mr R Refshauge, SC

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 15 May 2002

Date of order: 15 May 2002

Date of Judgment: 27 August 2002