R v. Bains

Case [2008] QDC 106

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Bains [2008] QDC 106

PARTIES:

THE QUEEN

v

AMARJIT SINGH BAINS

(Applicant)

FILE NO/S:

Indictment no. 2327/07

DIVISION:

Criminal

PROCEEDING:

Application for extension of time within which to reopen sentence.

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

9 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2008

JUDGE:

Rafter SC DCJ

ORDER:

Application to reopen sentence dismissed

CATCHWORDS:

CRIMINAL LAW – DISTRICT COURT OF QUEENSLAND – INQUIRY AFTER CONVICTION – APPLICATION TO RE-OPEN SENTENCE – WHETHER APPROPRIATE – where applicant seeks an extension of time within which to re-open sentence pursuant to s 188 Penalties and Sentences Act 1992 – where applicant contends that sentence imposed on an erroneous basis – where maximum sentence was misstated by crown prosecutor – where error of crown prosecutor was not corrected by defence solicitor – where no reference made to maximum sentence in sentencing remarks – where applicant was sentenced to six years imprisonment with a parole eligibility date after two and a half years – whether sentence was ‘decided on a clear factual error of substance’ – whether sentence imposed was ‘not in accordance with the law’ – whether sentence re-opening justified in the circumstances – whether lower sentence should be imposed

Criminal Code 1899 (Qld), s 328A(4)(a)
Criminal Code and Civil Liability Amendment Act 2007, s 4
Penalties and Sentences Act 1992, s9(2)(b), s 187, s 188

Transport Operations (Road Use Management) Act 1995, s 79A

Adams v The Queen [2008] HCA 15, cited
Baxter v The Queen (2007) 173 A Crim R 284, considered
Drage v R [1999] WASCA 1017, cited
Ibbs v The Queen (1987) 163 CLR 447, cited
Markarian v The Queen (2005) 228 CLR 357, considered
R v Armstrong [2007] QCA 146, considered
R v Balic [2005] QCA 212, considered
R v Beary (2004) 11 VR 151, cited
R v Cassar; ex parte Attorney-General (Qld) [2002] 1 Qd R 386, considered
R v Cook; ex parte Attorney-General (Qld) [2007] QCA 100, cited
R v Dingle [2003] QCA 7, cited
R v Dobie [2004] 2 Qd R 537, cited
R v Evans [2005] QCA 455, cited
R v G; ex parte Attorney-General (Qld) [1999] QCA 477, cited
R v Hey; ex parte Attorney-General (Qld) [2006] QCA 23, applied
R v Hoad [2005] QCA 92, considered
R v McKinnon [1999] QCA 75, cited
R v RJE [1999] VSCA 79, considered
R v Saltmarsh [2007] QCA 25, considered
R v Sheedy; ex parte Attorney-General (Qld) [2007] QCA 183, considered
R v Stephens [2006] QCA 123, considered
R v Tuncbilek [2000] NSWCCA 465, considered
R v Wilde; ex parte Attorney-General (Qld) [2002] QCA 501, considered

COUNSEL:

DC Shepherd for the applicant/defendant

MR Byrne for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant/defendant

Director of Public Prosecutions for the respondent

Introduction

  1. On 22 November 2007 the defendant pleaded guilty to dangerous operation…

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AGLC
R v Bains [2008] QDC 106
Case
[2008] QDC 106
Decision Date

CaseChat Overview and Summary

In the case of R v. Bains, the applicant, Bains, sought an extension of time within which to re-open his sentence under section 188 of the Penalties and Sentences Act 1992. The case was heard in the District Court of Queensland. Bains contended that the sentence imposed on him was erroneous because the maximum sentence was misstated by the crown prosecutor during the sentencing hearing. The defence solicitor did not correct this error, and the sentencing judge did not refer to the maximum sentence in their remarks. Bains was sentenced to six years imprisonment with a parole eligibility date after two and a half years.

The legal issues before the court were whether the sentence was 'decided on a clear factual error of substance' and whether it was 'not in accordance with the law'. The court also needed to decide whether the sentence should be re-opened and if a lower sentence should be imposed. The court found that the maximum sentence was misstated by the crown prosecutor, and this error was not corrected by the defence solicitor. However, the court found that the error did not affect the sentence imposed, as the sentencing judge did not refer to the maximum sentence in their remarks. The court held that the sentence was not 'decided on a clear factual error of substance' and that it was 'in accordance with the law'. Therefore, the application to re-open the sentence was dismissed.

In summary, the court found that the sentence imposed on Bains was lawful and that there was no clear factual error that affected the sentence. The court held that the applicant's application to re-open the sentence was unjustified in the circumstances, and the application was dismissed. The final order of the court was that the application to reopen sentence was dismissed.

Orders

Orders of the court

Application to reopen sentence dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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