R v C - [2002] QCA 156

SUPREME COURT OF QUEENSLAND

CITATION:

R v C [2002] QCA 156

PARTIES:

R
v
C
(applicant)

FILE NO/S:

CA No 25 of 2002
DC No 3022 of 2001

DC No 3023 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

10 May 2002

DELIVERED AT:

Brisbane

HEARING DATE:

12 March 2002

JUDGE:

McPherson and Williams JJA, Philippides J

Separate reasons for judgment of each member of the Court; McPherson JA and Philippides J concurring as to the orders made, Williams JA dissenting in part.

ORDER:

1. That the application to extend time be allowed;

2. That the application for leave to appeal against sentence be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – PARTICULAR MATTERS – OTHER INSTANCES OF INTERFERENCE – where no appeal against conviction filed – where refusal of application for stay of proceedings – where offences occurred between 1972 and 1976 – where complaints renewed in 2000 – whether lapse of time resulted in abuse of process – whether failure to grant stay resulted in injustice – where applicant convicted of other sexual offences in 1980 – whether applicant already punished for current offences – whether applicant deprived of defence of autrefois convict

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where applicant lodged out of time an application for leave to appeal against sentence – whether applicant has reasonable prospect of success in an appeal against sentence

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where applicant pleaded guilty to four counts of indecent dealing, one of sodomy and one of rape – where applicant sentenced to five years imprisonment – whether failure to give effect to totality principle – where order pursuant to
s 19(1) Criminal Law Amendment Act 1945 made – where provision was not in force at time of offence – whether order under s 19(1) constitutes punishment.

Acts Interpretation Act 1954 (Qld), 20C
Criminal Code (Qld), s 11(2), s 592A, s 592A(2)(a), s 592A(4), s 663B (repealed), s 668(1), s 668D(1)(c)
Criminal Law Amendment Act 1945 (Qld), s 19, s 19(1), s 19(2), s 19(9)
Penalties & Sentences Act 1992 (Qld), s 4, s 9(1)(c), s 9(1)(e), s 9(4)(b)

Birch v Allen (1942) 65 CLR 621, cited
Clunies-Ross v The Commonwealth (1984) 155 CLR 193, cited
Fenton v Thorley (1903) AC 443, cited
Fielding v Morley Corporation (1899) 1 Ch 1, cited
Jago v District Court of New South Wales (1989) 168 CLR 23, considered
Longman v The Queen (1989) 168 CLR 79

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 C

Details

AGLC: R v C [2002] QCA 156
Case: [2002] QCA 156
Decision Date: 10 May 2002

CaseChat Overview and Summary

The case before the court involved an appellant who had been convicted of various sexual offences, including indecent dealing, sodomy, and rape, committed between 1972 and 1976. The appellant, who had been convicted of other sexual offences in 1980, applied for an extension of time to lodge an application for leave to appeal against the sentence. The court was also asked to consider whether the refusal to stay the proceedings constituted an abuse of process due to the significant lapse of time since the offences were committed, and whether the appellant was deprived of the defence of autrefois convict. Additionally, the court had to determine if the order made under section 19(1) of the Criminal Law Amendment Act 1945 constituted punishment, given that the provision was not in force at the time of the offence.

The legal issues before the court included whether the significant delay in bringing the complaints to trial resulted in an abuse of process, whether the failure to grant a stay of proceedings was unjust, and whether the appellant had already been punished for the current offences through his earlier convictions. The court also had to consider whether the appellant had a reasonable prospect of success in an appeal against the sentence, and whether the order made under section 19(1) of the Criminal Law Amendment Act 1945 constituted punishment, considering the provision was not in force at the time of the offence.

The court found that the significant delay in bringing the complaints to trial did not amount to an abuse of process, as the appellant had not demonstrated any prejudice caused by the delay. The court also held that the failure to grant a stay of proceedings did not result in an injustice, as the appellant had already been convicted and punished for other sexual offences. The court further determined that the appellant had not been deprived of the defence of autrefois convict, as the earlier convictions did not cover the current offences. Regarding the application for leave to appeal against the sentence, the court found that the appellant did not have a reasonable prospect of success. Finally, the court held that the order made under section 19(1) of the Criminal Law Amendment Act 1945 did not constitute punishment.

The court made two orders. First, it allowed the application to extend time for the appellant to lodge an application for leave to appeal against the sentence. Second, it dismissed the application for leave to appeal against the sentence.

Orders

Orders of the court

1. That the application to extend time be allowed;

2. That the application for leave to appeal against sentence be 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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CITATION:	R v C [2002] QCA 156
PARTIES:	R v C (applicant)
FILE NO/S:	CA No 25 of 2002 DC No 3022 of 2001 DC No 3023 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	10 May 2002
DELIVERED AT:	Brisbane
HEARING DATE:	12 March 2002
JUDGE:	McPherson and Williams JJA, Philippides J Separate reasons for judgment of each member of the Court; McPherson JA and Philippides J concurring as to the orders made, Williams JA dissenting in part.
ORDER:	1. That the application to extend time be allowed; 2. That the application for leave to appeal against sentence be dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – PARTICULAR MATTERS – OTHER INSTANCES OF INTERFERENCE – where no appeal against conviction filed – where refusal of application for stay of proceedings – where offences occurred between 1972 and 1976 – where complaints renewed in 2000 – whether lapse of time resulted in abuse of process – whether failure to grant stay resulted in injustice – where applicant convicted of other sexual offences in 1980 – whether applicant already punished for current offences – whether applicant deprived of defence of autrefois convict CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where applicant lodged out of time an application for leave to appeal against sentence – whether applicant has reasonable prospect of success in an appeal against sentence CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where applicant pleaded guilty to four counts of indecent dealing, one of sodomy and one of rape – where applicant sentenced to five years imprisonment – whether failure to give effect to totality principle – where order pursuant to s 19(1) Criminal Law Amendment Act 1945 made – where provision was not in force at time of offence – whether order under s 19(1) constitutes punishment. Acts Interpretation Act 1954 (Qld), 20C Criminal Code (Qld), s 11(2), s 592A, s 592A(2)(a), s 592A(4), s 663B (repealed), s 668(1), s 668D(1)(c) Criminal Law Amendment Act 1945 (Qld), s 19, s 19(1), s 19(2), s 19(9) Penalties & Sentences Act 1992 (Qld), s 4, s 9(1)(c), s 9(1)(e), s 9(4)(b) Birch v Allen (1942) 65 CLR 621, cited Clunies-Ross v The Commonwealth (1984) 155 CLR 193, cited Fenton v Thorley (1903) AC 443, cited Fielding v Morley Corporation (1899) 1 Ch 1, cited Jago v District Court of New South Wales (1989) 168 CLR 23, considered Longman v The Queen (1989) 168 CLR 79