R v Burton - [2010] QCA 376

SUPREME COURT OF QUEENSLAND

CITATION:

R v Burton [2010] QCA 376

PARTIES:

R
v
BURTON, Danny William
(applicant)

FILE NO/S:

CA No 189 of 2010
DC No 2027 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Application for leave s 118 DCA - Criminal)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

23 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

25 October 2010

JUDGES:

Margaret McMurdo P, Fraser and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where applicant pleaded guilty to stealing a sum of $70,000 from his then employer – where applicant stole the sum on money as payment for unauthorised work performed to the benefit of the complainant company – where applicant sentenced to two years imprisonment with court ordered parole after serving five months – where applicant’s appeal to the District Court was dismissed – where applicant has applied for extension of time to file a notice of application for leave to appeal pursuant to s 118 of the District Court of Queensland Act 1967 (Qld) – where application filed three and a half months out of time – where applicant submitted that his was an exceptional case, with a low level of criminality, and a sentence of imprisonment was not an appropriate sentence – whether applicant demonstrated prospects of success on appeal – whether the learned District Court Judge failed to give effect to s 9(2) of the Penalties and Sentences Act 1992 (Qld) that imprisonment is a sentence of last resort – whether the justice of the case demands an extension of time

District Court of Queensland Act 1967 (Qld), s 118
Justices Act 1886 (Qld), s 222, s 223
Penalties and Sentences Act 1992 (Qld), s 9(2), s 12(1)

R v Allen[2005] QCA 73, considered
R v Alexander[2004] QCA 11, considered
R v Blackhall-Cain; ex parte A-G of Qld [2000] QCA 380, considered
R v Fisher[2002] QCA 259, considered
R v Hearnden [2002] QCA 258, considered
R v La Rosa; ex parte A-G (Qld) [2006] QCA 19, applied
R v Mara; ex parte Attorney-General of Queensland[1999] QCA 308, considered
R v Peters [1989] CCA 096, considered
R v Rees [2002] QCA 469, considered
R v Riesenweber; ex parte Attorney-General of Queensland[1996] QCA 504, considered

COUNSEL:

The applicant appeared on his own behalf
D L Meredith for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Qld) for the respondent

MARGARET McMURDO P: As White JA persuasively demonstrates in her reasons, the applicant has shown neither a satisfactory reason for delay in bringing his application for leave to appeal, nor that he has any prospect of success in such an application. The application for an…

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 Burton

Details

AGLC: R v Burton [2010] QCA 376
Case: [2010] QCA 376
Decision Date: 23 December 2010

CaseChat Overview and Summary

The case of R v Burton involves the applicant appealing the decision of the District Court to dismiss his appeal against his conviction and sentence. The applicant pleaded guilty to stealing $70,000 from his employer, which was payment for unauthorized work he performed. He was sentenced to two years imprisonment, with parole after five months. The District Court dismissed the applicant's appeal, and he has now applied for an extension of time to file a notice of application for leave to appeal to the Court of Appeal under section 118 of the District Court of Queensland Act 1967.

The court was required to determine whether the applicant demonstrated the prospects of success on appeal and whether the District Court judge failed to give effect to section 9(2) of the Penalties and Sentences Act 1992, which states that imprisonment is a sentence of last resort. The court also had to consider whether the justice of the case demanded an extension of time for the applicant to file his notice of application for leave to appeal.

The court found that the applicant did not demonstrate a reasonable prospect of success on appeal, as the sentence imposed was not manifestly excessive or inappropriate. The court also found that the District Court judge had considered the principles in section 9(2) of the Penalties and Sentences Act and had not erred in imposing the sentence. Furthermore, the court held that the justice of the case did not demand an extension of time for the applicant to file his notice of application for leave to appeal as the delay in filing the application was not satisfactorily explained.

The application for an extension of time to file a notice of application for leave to appeal is dismissed.

Orders

Orders of the court

The application is dismissed.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Burton [2010] QCA 376
PARTIES:	R v BURTON, Danny William (applicant)
FILE NO/S:	CA No 189 of 2010 DC No 2027 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Application for leave s 118 DCA - Criminal)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	23 December 2010
DELIVERED AT:	Brisbane
HEARING DATE:	25 October 2010
JUDGES:	Margaret McMurdo P, Fraser and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where applicant pleaded guilty to stealing a sum of $70,000 from his then employer – where applicant stole the sum on money as payment for unauthorised work performed to the benefit of the complainant company – where applicant sentenced to two years imprisonment with court ordered parole after serving five months – where applicant’s appeal to the District Court was dismissed – where applicant has applied for extension of time to file a notice of application for leave to appeal pursuant to s 118 of the District Court of Queensland Act 1967 (Qld) – where application filed three and a half months out of time – where applicant submitted that his was an exceptional case, with a low level of criminality, and a sentence of imprisonment was not an appropriate sentence – whether applicant demonstrated prospects of success on appeal – whether the learned District Court Judge failed to give effect to s 9(2) of the Penalties and Sentences Act 1992 (Qld) that imprisonment is a sentence of last resort – whether the justice of the case demands an extension of time District Court of Queensland Act 1967 (Qld), s 118 Justices Act 1886 (Qld), s 222, s 223 Penalties and Sentences Act 1992 (Qld), s 9(2), s 12(1) R v Allen[2005] QCA 73, considered R v Alexander[2004] QCA 11, considered R v Blackhall-Cain; ex parte A-G of Qld [2000] QCA 380, considered R v Fisher[2002] QCA 259, considered R v Hearnden [2002] QCA 258, considered R v La Rosa; ex parte A-G (Qld) [2006] QCA 19, applied R v Mara; ex parte Attorney-General of Queensland[1999] QCA 308, considered R v Peters [1989] CCA 096, considered R v Rees [2002] QCA 469, considered R v Riesenweber; ex parte Attorney-General of Queensland[1996] QCA 504, considered
COUNSEL:	The applicant appeared on his own behalf D L Meredith for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Qld) for the respondent