R v Brown - [2002] QCA 426

SUPREME COURT OF QUEENSLAND

CITATION:

R v Brown [2002] QCA 426

PARTIES:

R
V
BROWN, Jason Albert
(applicant)

FILE NO/S:

CA No 4 of 2002
DC No 24 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED EXTEMPORE ON:

9 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

9 October 2002

JUDGES:

McMurdo P, Cullinane and Holmes JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for leave to appeal granted
2. Appeal allowed
3. Instead of the sentence imposed on counts 29 and 30,
    the sentences of nine years’ imprisonment are
    substituted
4. Declaration that those offences are serious violent
    offences

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND
INQUIRY AFTER CONVICTION – APPEAL AND NEW
TRIAL - APPEAL AGAINST SENTENCE - where section 188(1)(c) Penalties and Sentences Act (Qld) application to sentencing judge to re-open sentence to take into account material not before the judge at the time of sentencing – where applicant also asked the judge to take into account new material – whether a Court that re-opens a sentence under s 188(1)(c) may take into account new matters – whether sentence manifestly excessive in all the circumstances

Penalties and Sentences Act 1992 (Qld), s 188(1)(c)

Boyd v Sandercock; ex parte Sandercock [1990] 2 Qd R 26, cited
R v Davis (1999) 109 A Crim R 314, cited
R v Thorpy [1996] 2 Qd R 77, considered
R v Tommekand [1996] 1 Qd R 564, cited
R v Voss; ex parte A-G[2001] QCA 483, CA No 160 of 2001, 9 November 2001, cited
R v Williams; ex parte Biggs [1989] 1 Qd R 594, cited

COUNSEL:

B G Devereaux for the applicant
C W Heaton for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: On 15 February 2001, the applicant pleaded guilty to 32 counts on a 33 count indictment. He was later convicted of the remaining count on 20 February 2001. His sentence on all matters was adjourned until 24 April 2001, when he was sentenced to 12 years' imprisonment on one count of armed robbery in company and one count of grievous bodily harm with intent, and to a lesser concurrent sentence on the remaining offences.

On 13 December 2001, the sentencing proceedings were re-opened before the learned sentencing Judge under section 188 Penalties and Sentences Act 1992 (Qld). It was common ground that the material of the relevant facts before his sentence on 24 April 2001 were not placed before the sentencing Judge, so that the sentence imposed was decided on a clear factual error of substance under section 188(1)(c).

After considering material that was placed before him, the learned sentencing Judge reduced the effective sentence of 12 years' imprisonment to one of 10 years and nine months' imprisonment, and reduced a number of other concurrent lesser terms of imprisonment.

The first…

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 Brown

Details

AGLC: R v Brown [2002] QCA 426
Case: [2002] QCA 426
Decision Date: 9 October 2002

CaseChat Overview and Summary

The applicant, R, appealed against his sentence following his conviction for various offences. The appeal was heard in the Court of Appeal. The central issue in the appeal was whether the sentencing judge, upon applying to re-open the sentence under section 188(1)(c) of the Penalties and Sentences Act, was permitted to take into account new material that had not been available at the time of the initial sentencing. Additionally, the court needed to determine whether the sentence imposed was manifestly excessive given all the circumstances.

The court found that the sentencing judge was not permitted to take into account new material when re-opening the sentence under section 188(1)(c). The court emphasised that the purpose of the section was to correct errors or take into account material that was known but not considered at the time of the initial sentencing, not to introduce new evidence. The court concluded that the original sentence was manifestly excessive, given the nature of the offences and the circumstances surrounding them. As a result, the court substituted the original sentences of nine years' imprisonment for counts 29 and 30 with sentences of nine years' imprisonment, declaring those offences to be serious violent offences.

The orders of the court included granting the application for leave to appeal, allowing the appeal, substituting the sentences for counts 29 and 30, and declaring those offences to be serious violent offences. This decision highlights the importance of ensuring that sentencing processes adhere to legislative provisions and that sentences reflect the true nature and circumstances of the offences committed.

Orders

Orders of the court

1. Application for leave to appeal granted

2. Appeal allowed

3. Instead of the sentence imposed on counts 29 and 30,

the sentences of nine years’ imprisonment are

substituted

4. Declaration that those offences are serious violent

offences

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.

CITATION:	R v Brown [2002] QCA 426
PARTIES:	R V BROWN, Jason Albert (applicant)
FILE NO/S:	CA No 4 of 2002 DC No 24 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED EXTEMPORE ON:	9 October 2002
DELIVERED AT:	Brisbane
HEARING DATE:	9 October 2002
JUDGES:	McMurdo P, Cullinane and Holmes JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal granted 2. Appeal allowed 3. Instead of the sentence imposed on counts 29 and 30, the sentences of nine years’ imprisonment are substituted 4. Declaration that those offences are serious violent offences
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - where section 188(1)(c) Penalties and Sentences Act (Qld) application to sentencing judge to re-open sentence to take into account material not before the judge at the time of sentencing – where applicant also asked the judge to take into account new material – whether a Court that re-opens a sentence under s 188(1)(c) may take into account new matters – whether sentence manifestly excessive in all the circumstances Penalties and Sentences Act 1992 (Qld), s 188(1)(c) Boyd v Sandercock; ex parte Sandercock [1990] 2 Qd R 26, cited R v Davis (1999) 109 A Crim R 314, cited R v Thorpy [1996] 2 Qd R 77, considered R v Tommekand [1996] 1 Qd R 564, cited R v Voss; ex parte A-G[2001] QCA 483, CA No 160 of 2001, 9 November 2001, cited R v Williams; ex parte Biggs [1989] 1 Qd R 594, cited
COUNSEL:	B G Devereaux for the applicant C W Heaton for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent