R v AC

Case [2001] QCA 56 27 February 2001

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SUPREME COURT OF QUEENSLAND

CITATION:

R v AC [2001] QCA 56

PARTIES:

R
v
AC
(applicant/appellant)

FILE NO/S:

CA No 234 of 1999
DC No 1894 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

27 February 2001

DELIVERED AT:

Brisbane

HEARING DATE:

6 February 2001

JUDGES:

Davies JA, Williams JA, Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:
1.   Application for leave to appeal is granted.

2.   Appeal allowed. Sentences on counts 3, 4 and 5 are set aside.

3.   In lieu thereof the following sentences are substituted:

(a)   on count 3 a sentence of five years imprisonment;

(b)   on count 4 a sentence of four and a half years imprisonment;

(c)    on count 5 a sentence of three years imprisonment.

In each case it is recommended that the applicant be eligible to apply for release on parole immediately upon the making of this order.

4.   In each case, the sentence shall be taken to have been imposed on 17 June 1999 with 408 days custody prior to that date being taken into account as time already served. The dates of such custody are 3 May 1998 to 1 October 1998 and 5 October 1998 to 17 June 1999.

5. The sentences referred to in paragraph 3 have been reduced for the reasons mentioned in s 13A of the Penalties & Sentences Act 1992 (Qld) to the extent stated in paragraph 33 of the reasons for judgment.

6.   Otherwise the sentences imposed would have been the following:

(a)   Count 3 – eight years with a recommendation that the applicant be eligible to apply for parole after serving three years;

(b)   Count 4 – seven years imprisonment with a recommendation that the applicant be eligible to apply for parole after serving two years eight months;

(c) Count 5 – four years nine months imprisonment with a recommendation that the applicant be eligible to apply for release on parole after serving one year nine months.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – where applicant co-operated by confessing to and pleading guilty to charges of which convicted – where applicant gave an undertaking to give evidence against a co-offender in this matter – effect on sentence and parole – Penalties and Sentences Act 1992 s 13A – whether non-compliance with s 13A(7) of the Penalties and Sentences Act 1992

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – where conviction of rape set aside – where prosecution discontinued proceedings in regard to rape conviction

Corrective Services Act 1988 (Qld), s 166(1)(c)
Penalties & Sentences Act 1992 (Qld), s 13A, s 13A(7)

R v Awai, Rapana and Rapana [1994] QCA 252; CA No 118 and CA No 136 and CA No 137 of 1994, 15 June 1994, considered
R v Banks [1998] QCA 218;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v AC

Details

AGLC: R v AC [2001] QCA 56
Case: [2001] QCA 56
Decision Date: 27 February 2001

CaseChat Overview and Summary

The case of R v AC involved an appeal against the sentence imposed on the applicant following his conviction on three counts of serious criminal offences. The applicant had cooperated with the authorities by confessing to the charges and pleading guilty. He had also given an undertaking to provide evidence against a co-offender. The legal issues before the court were centred around the effect of the applicant's cooperation on his sentence and parole eligibility under section 13A of the Penalties and Sentences Act 1992. The court had to determine whether the applicant's non-compliance with section 13A(7) of the Act warranted any adjustment to his sentence.

The court examined the factors relevant to sentencing, including the nature of the offences, the applicant's cooperation, and the public interest in ensuring that offenders receive appropriate punishment and deterrence. The court considered the principles of sentencing under section 13A of the Penalties and Sentences Act 1992, which require the court to consider the offender's cooperation and the need to provide just desserts and deterrence. The court found that while the applicant's cooperation was significant, it did not warrant a substantial reduction in his sentence. However, the court did reduce the sentences on counts 3, 4, and 5 to reflect the applicant's cooperation and the need for just desserts and deterrence.

The court allowed the appeal against the sentences imposed on counts 3, 4, and 5, setting them aside and substituting new sentences. The new sentences were five years for count 3, four and a half years for count 4, and three years for count 5, with the applicant being eligible to apply for release on parole immediately upon the making of the order. The court also ordered that the sentences be taken to have been imposed on 17 June 1999, with 408 days of custody prior to that date being taken into account as time already served. The court's decision was based on the principles of sentencing under section 13A of the Penalties and Sentences Act 1992 and the need to provide just desserts and deterrence while taking into account the applicant's cooperation.

Orders

Orders of the court

1. Application for leave to appeal is granted.

2. Appeal allowed. Sentences on counts 3, 4 and 5 are set aside.

3. In lieu thereof the following sentences are substituted:

(a) on count 3 a sentence of five years imprisonment;

(b) on count 4 a sentence of four and a half years imprisonment;

In each case it is recommended that the applicant be eligible to apply for release on parole immediately upon the making of this order.

4. In each case, the sentence shall be taken to have been imposed on 17 June 1999 with 408 days custody prior to that date being taken into account as time already served. The dates of such custody are 3 May 1998 to 1 October 1998 and 5 October 1998 to 17 June 1999.

5. The sentences referred to in paragraph 3 have been reduced for the reasons mentioned in s 13A of the Penalties & Sentences Act 1992 (Qld) to the extent stated in paragraph 33 of the reasons for judgment.

6. Otherwise the sentences imposed would have been the following:

(a) Count 3 – eight years with a recommendation that the applicant be eligible to apply for parole after serving three years;

(b) Count 4 – seven years imprisonment with a recommendation that the applicant be eligible to apply for parole after serving two years eight months;

(c) Count 5 – four years nine months imprisonment with a recommendation that the applicant be eligible to apply for release on parole after serving one year nine months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v AC [2001] QCA 56

Most Recent Citation

R v McGrath [2001] QCA 131

Cases citing this decision · 3 of 3 shown

R v Amato
[2013] QCA 158 Para 1

…hat term was supported by R v A ,[3] R v Aaron Blenkinsop ,[4] R v Leu and Togia ,[5] and R v Dodds .[6] [1][2001] 1 Qd R 393. [2][2000] QCA 84. [3][2001] QCA 56. [4][2007] QCA 181. [5][2008] QCA 201. [6][2003] QCA 540.…
Décor Blinds Gold Coast Pty Ltd v Décor Blinds Australia Pty Ltd
[2004] QSC 55 Para 1

…Ltd (1978) 138 CLR 423 at 433; Foran v Wight (1989) 168 CLR 385 at 398-402, 451; Segacious Pty Ltd v Fabrellas [1991] 1 QdR 471 at 478)”. [27][2001] QCA 56 at [45].…
R v McGrath
[2001] QCA 131 Para 1

…the sentence passed on the person's conviction" against which an application may be made for leave to appeal under s 668D(1)(c) of the Code. [15] [14][2001] QCA 56, CA No 234 of 1999, 27 February 2001. [15]cf R v Foley ex parte Attorney-General (1988) 1 Qd R 570, 572, 576.…

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Cases cited in this decision · 10 of 10 shown

Williams v Queensland Community Corrections Board
[2000] QCA 75 Para 1

…With regard to the reduction of sentence under s 13A, in Williams v Queensland Community Corrections Board [2000] QCA 75; CA No 6237 of 1999, 17 March 2000, the following passages appear in the judgment of the court:…
R v Stinton
[1999] QCA 15 Para 1

…Reliance was placed on three particular authorities, R v Green [1996] QCA 306; CA No 190 of 1996, 2 August 1996, R v Stinton [1999] QCA 15; CA No 289 of 1998, 5 February 1999, and R v Awai, Rapana and Rapana [1994] QCA 252; CA No 118 and CA No 136 and CA No 137 of 1994, 15 June 1994.…
R v Doolan
[1998] QCA 386 Para 1

…No 493 of 1995, 23 February 1996, where sentences of 5 years with recommendations of 12 months and 18 months respectively were imposed and R v Doolan [1998] QCA 386, CA No 175 of 1998, 8 October 1998, where a sentence of 4½ years with a recommendation after 2 years was imposed. In each case it was held that the s…
R v Grogin
[1998] QCA 361 Para 1

…were young offenders with some but not very extensive previous convictions. It was held that the sentence was not manifestly excessive. In R v Grogin [1998] QCA 361; CA No 198 and CA No 233 of 1998, 27 August 1998, the sentence was effectively 6½ years with a recommendation for parole after 2½ years but an attemp…
R v Banks
[1998] QCA 218 Para 1

…redness to give evidence is not bona fide. (c.f. R v Thompson (1994) A Crim R 75) Indeed, he has already given evidence at committal. (c.f. R v Banks [1998] QCA 218; CA No 117 of 1998, 31 July1998). In those circumstances there is no reason to devalue his co-operation by reason of the way it developed.…
Domican v R
[1992] HCA 13 Para 1

…conviction was subsequently quashed and a new trial ordered, principally on the ground that a Domican direction should have been given ( R v Domican (1992) 173 CLR 555)). The Director of Public Prosecutions subsequently decided not to proceed with the retrial.…
CA No 289 of 1998, 5 February 1999, and R v Awai, Rapana and Rapana
[1994] QCA 252 Para 1

…reen [1996] QCA 306; CA No 190 of 1996, 2 August 1996, R v Stinton [1999] QCA 15; CA No 289 of 1998, 5 February 1999, and R v Awai, Rapana and Rapana [1994] QCA 252; CA No 118 and CA No 136 and CA No 137 of 1994, 15 June 1994.…
R v Green
[1996] QCA 306 Para 1

…Reliance was placed on three particular authorities, R v Green [1996] QCA 306; CA No 190 of 1996, 2 August 1996, R v Stinton [1999] QCA 15; CA No 289 of 1998, 5 February 1999, and R v Awai, Rapana and Rapana [1994] QCA 252; CA No 118 and CA No 136 and CA No 137 of 1994, 15 June 1994.…
R v Stawicki & Meier
[1996] QCA 51 Para 1

…Before the sentencing judge reliance was also placed on R v Stawicki and Meier [1996] QCA 51; CA No 483 and CA No 493 of 1995, 23 February 1996, where sentences of 5 years with recommendations of 12 months and 18 months respectively were imposed and R v Doolan [1998] QCA 386, CA No 175 of 1998, 8 October 1998, w…
QCA 158 and R v Mullins & Kluck
[2000] QCA 150 Para 1

…The applicant relied on several authorities in support of a lower range of sentence. In R v Mullins and Kluck [2000] QCA 150; CA No 387 and CA No 388 of 1999, 2 May 2000, the applicants received 7 years imprisonment with a non-parole period of 3 years. They were young offenders with some but not very extensive pr…

Legislation cited in this decision · 3

Corrective Services Act 1988 (Qld)
166(1)(c) 2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
13A 2 mentions
Sentences Act 1992 (Qld)
13A 2 mentions (from Para 1)

CITATION:	R v AC [2001] QCA 56
PARTIES:	R v AC (applicant/appellant)
FILE NO/S:	CA No 234 of 1999 DC No 1894 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	27 February 2001
DELIVERED AT:	Brisbane
HEARING DATE:	6 February 2001
JUDGES:	Davies JA, Williams JA, Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal is granted. 2. Appeal allowed. Sentences on counts 3, 4 and 5 are set aside. 3. In lieu thereof the following sentences are substituted: (a) on count 3 a sentence of five years imprisonment; (b) on count 4 a sentence of four and a half years imprisonment; (c) on count 5 a sentence of three years imprisonment. In each case it is recommended that the applicant be eligible to apply for release on parole immediately upon the making of this order. 4. In each case, the sentence shall be taken to have been imposed on 17 June 1999 with 408 days custody prior to that date being taken into account as time already served. The dates of such custody are 3 May 1998 to 1 October 1998 and 5 October 1998 to 17 June 1999. 5. The sentences referred to in paragraph 3 have been reduced for the reasons mentioned in s 13A of the Penalties & Sentences Act 1992 (Qld) to the extent stated in paragraph 33 of the reasons for judgment. 6. Otherwise the sentences imposed would have been the following: (a) Count 3 – eight years with a recommendation that the applicant be eligible to apply for parole after serving three years; (b) Count 4 – seven years imprisonment with a recommendation that the applicant be eligible to apply for parole after serving two years eight months; (c) Count 5 – four years nine months imprisonment with a recommendation that the applicant be eligible to apply for release on parole after serving one year nine months.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – where applicant co-operated by confessing to and pleading guilty to charges of which convicted – where applicant gave an undertaking to give evidence against a co-offender in this matter – effect on sentence and parole – Penalties and Sentences Act 1992 s 13A – whether non-compliance with s 13A(7) of the Penalties and Sentences Act 1992 CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – where conviction of rape set aside – where prosecution discontinued proceedings in regard to rape conviction Corrective Services Act 1988 (Qld), s 166(1)(c) Penalties & Sentences Act 1992 (Qld), s 13A, s 13A(7) R v Awai, Rapana and Rapana [1994] QCA 252; CA No 118 and CA No 136 and CA No 137 of 1994, 15 June 1994, considered R v Banks [1998] QCA 218;…