R v CAJ - [2009] QCA 37

SUPREME COURT OF QUEENSLAND

CITATION:

R v CAJ [2009] QCA 37

PARTIES:

R
v
CAJ
(applicant)

FILE NO/S:

CA No 321 of 2008
DC No 679 of 2007
DC No 270 of 2007
DC No 606 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

27 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2009

JUDGES:

de Jersey CJ, Fraser JA and P Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for an extension of time within which to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted of one count of deprivation of liberty, three counts of rape and one count of unlawful use of a motor vehicle, all in an ex officio indictment, and a further three counts of rape in a separate indictment – where applicant sentenced to 12 months imprisonment for deprivation of liberty count; 4 years imprisonment for each of the three counts of rape in the ex officio indictment; to the rising of the court for the count of unlawful use of a motor vehicle; and to 10 years imprisonment for each of the three counts of rape in the separate indictment – where all sentences to be served concurrently – where applicant had criminal history involving sexual assault committed as a juvenile – where circumstances of sexual offences involved complainants under the age of 16 and substantial levels of violence – where applicant had suffered a dysfunctional childhood – whether sentence manifestly excessive in all of the circumstances

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant sought an extension of time of 10 months in which to appeal against sentence – where the applicant claimed that his solicitor did not give him legal advice concerning an appeal; that he was in close detention; and that he was depressed as explanations for his failure to initiate his application in time – whether the applicant had provided an adequate explanation for his failure to initiate his application in time – whether it is in the interests of justice to grant the extension

Juvenile Justice Act 1992 (Qld), s 144(2)

R v Basic (2000) 115 A Crim R 456; [2000] QCA 155, cited
R v Bolton [2005] QCA 335, cited
R v Flew[2008] QCA 290, cited
R v Mallie[2000] QCA 188, cited
R v PZ; ex parte Attorney-General[2005] QCA 459, cited
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited
R v Wark[2008] QCA 172, distinguished

COUNSEL:

The applicant appeared on his own behalf
G Cummings for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions…

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 CAJ

Details

AGLC: R v CAJ [2009] QCA 37
Case: [2009] QCA 37
Decision Date: 27 February 2009

CaseChat Overview and Summary

The case of R v CAJ involved an appeal against sentence, with the applicant challenging the appropriateness of the sentence imposed by the court. The applicant was convicted of various offences, including deprivation of liberty, multiple counts of rape, and unlawful use of a motor vehicle. The applicant was sentenced to imprisonment terms for the various counts, with all sentences to be served concurrently. The applicant sought to appeal the sentence, arguing that it was manifestly excessive. Additionally, the applicant sought an extension of time to appeal, citing various reasons for the delay in initiating the appeal.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive, taking into account all the circumstances of the case, including the nature and severity of the offences, the applicant's criminal history, and his personal background. The court also had to consider whether the applicant had provided an adequate explanation for the delay in initiating the appeal and whether it was in the interests of justice to grant the extension of time.

In considering the sentence, the court took into account the seriousness of the offences, the vulnerability of the victims, and the applicant's background. The court found that the sentence, while severe, was not manifestly excessive given the circumstances. Regarding the extension of time, the court held that the applicant's reasons for the delay were not sufficient to warrant an extension. The applicant's claims of not receiving legal advice and being in close detention did not sufficiently explain the significant delay in initiating the appeal. The court concluded that it was not in the interests of justice to grant the extension.

The court refused the application for an extension of time within which to appeal against sentence. The applicant's appeal against sentence was therefore dismissed.

Orders

Orders of the court

Application for an extension of time within which to appeal against sentence refused

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 CAJ [2009] QCA 37
PARTIES:	R v CAJ (applicant)
FILE NO/S:	CA No 321 of 2008 DC No 679 of 2007 DC No 270 of 2007 DC No 606 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	27 February 2009
DELIVERED AT:	Brisbane
HEARING DATE:	10 February 2009
JUDGES:	de Jersey CJ, Fraser JA and P Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for an extension of time within which to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted of one count of deprivation of liberty, three counts of rape and one count of unlawful use of a motor vehicle, all in an ex officio indictment, and a further three counts of rape in a separate indictment – where applicant sentenced to 12 months imprisonment for deprivation of liberty count; 4 years imprisonment for each of the three counts of rape in the ex officio indictment; to the rising of the court for the count of unlawful use of a motor vehicle; and to 10 years imprisonment for each of the three counts of rape in the separate indictment – where all sentences to be served concurrently – where applicant had criminal history involving sexual assault committed as a juvenile – where circumstances of sexual offences involved complainants under the age of 16 and substantial levels of violence – where applicant had suffered a dysfunctional childhood – whether sentence manifestly excessive in all of the circumstances CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant sought an extension of time of 10 months in which to appeal against sentence – where the applicant claimed that his solicitor did not give him legal advice concerning an appeal; that he was in close detention; and that he was depressed as explanations for his failure to initiate his application in time – whether the applicant had provided an adequate explanation for his failure to initiate his application in time – whether it is in the interests of justice to grant the extension Juvenile Justice Act 1992 (Qld), s 144(2) R v Basic (2000) 115 A Crim R 456; [2000] QCA 155, cited R v Bolton [2005] QCA 335, cited R v Flew[2008] QCA 290, cited R v Mallie[2000] QCA 188, cited R v PZ; ex parte Attorney-General[2005] QCA 459, cited R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited R v Wark[2008] QCA 172, distinguished
COUNSEL:	The applicant appeared on his own behalf G Cummings for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions…