Appeal successful for man who assaulted police officer
A HERVEY Bay man has been successful in the state's highest court to have his 18 months prison sentence for assaulting a police officer adjusted.
David Richard Benson, 44, argued in the Queensland Court of Appeal that when he was sentenced for the offences earlier this year a parole eligibly term was fixed and not a parole release date set which would have taken into account the time he had already served behind bars.
He claimed by not doing so the sentence he received was crushing.
The court heard Benson was on parole for unrelated offences when he assaulted the police officer.
The error occurred when Benson was arrested for these offences in April, 2013, his parole for a 2011 offence was suspended and he served out the remainder of that sentence while waiting to be sentenced over the new matter.
The court heard the he sentencing judge was not made aware that he had only two days left to serve on the initial 2011 sentence when he was jailed for 18 months over the police assault.
The new sentence should have been ordered to be served cumulative on the initial one.
Justice Philip Morrison, when handing down the court's finding on Friday, said although the matter was minor the court was required to correct it.
"Even though that error was made, and should be corrected, it is not an error which would have made any material difference to the sentence imposed by the learned sentencing judge," he said.
"It therefore does not mean that this court should exercise its own sentencing discretion afresh.
"If that error is corrected it will only have the effect of extending the full-time discharge date by two days and will have no effect on the parole eligibility date."
The court ordered that the sentence Benson received on February 7 this year be served cumulative with the sentence he was already serving which was imposed on October, 14, 2011.