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R v Cannon

R v Cannon

Case [2005] QCA 41 28 February 2005

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Cannon [2005] QCA 41

PARTIES:

R
v
CANNON, Charles Edward
(applicant/appellant)

FILE NO/S:

CA No 293 of 2004
DC No 263 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

28 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2005

JUDGES:

McMurdo P, Williams JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    Grant the application for leave to appeal against
     sentence
2.    Allow the appeal against sentence
3.    Vary the sentence imposed at first instance by                deleting the order that the term of imprisonment be       suspended after serving a period of 12 months       imprisonment to an order that the term of       imprisonment be suspended forthwith and by deleting       the order that the sentence be served cumulatively

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant convicted for home invasion offences and sentenced to a period of imprisonment – where applicant subsequently convicted after trial of attempting to procure the commission of a criminal act and sentenced to two years imprisonment to be suspended after serving 12 months – where that sentence to be served cumulatively on sentence for home invasion offences – where sentence for home invasion offences subsequently set aside – where applicant served 304 days pre-sentence custody on remand for offence of attempting to procure the commission of a criminal act and other offences – where that pre-sentence custody was not taken into account by sentencing judge – where applicant served approximately 100 days of sentence imposed – whether pre-sentence custody should be taken into account – whether sentence manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 161

R v Ainsworth [2000] QCA 163; CA No 26 of 2000, 5 May 2000, applied
R v Skedgwell [1999] 2 Qd R; [1988] QCA 93; CA No 434 of 1997, 15 May 1988, applied

COUNSEL:

C Reid for the applicant
R G Martin SC for the respondent

SOLICITORS:

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

McMURDO P: Mr Cannon was convicted after a trial in the District Court at Maroochydore on 4 August 2004 of attempting to procure the commission of a criminal act. The next day he was sentenced to two years imprisonment to be suspended after serving 12 months with an operational period of two years, the sentence to commence at the conclusion of another sentence imposed on 26 February 2004. Mr Cannon was then serving the latter sentence for offences arising out of what is best described in short form as a home invasion. The home invasion convictions were subsequently set aside and a new trial ordered by this Court on 19 November 2004[1] so that…

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 Cannon

Details

AGLC: R v Cannon [2005] QCA 41
Case: [2005] QCA 41
Decision Date: 28 February 2005

CaseChat Overview and Summary

The respondent, Cannon, appealed against his sentence in the Court of Appeal, following his conviction for home invasion offences and subsequent conviction for attempting to procure the commission of a criminal act. The Court was required to determine whether the pre-sentence custody Cannon served on remand should be taken into account in calculating the sentence for the attempted procurement offence and whether the sentence was manifestly excessive. The Court also had to consider whether the sentence was appropriate in light of the fact that the home invasion sentence had been set aside.

The Court of Appeal found that the pre-sentence custody should be taken into account in calculating the sentence for the attempted procurement offence. The Court held that the sentencing judge's failure to take into account the pre-sentence custody resulted in a manifestly excessive sentence. The Court further found that the sentence was inappropriate because the home invasion sentence had been set aside. The Court concluded that the sentence imposed for the attempted procurement offence should be suspended forthwith, rather than after serving a period of 12 months imprisonment, and that the sentence should not be served cumulatively with the home invasion sentence.

The Court of Appeal granted leave to appeal against sentence and allowed the appeal. The Court varied the sentence imposed at first instance by deleting the order that the term of imprisonment be suspended after serving a period of 12 months imprisonment and by deleting the order that the sentence be served cumulatively. The Court ordered that the term of imprisonment be suspended forthwith and that the sentence not be served cumulatively with the home invasion sentence.

Orders

Orders of the court

1. Grant the application for leave to appeal against

sentence

2. Allow the appeal against sentence

3. Vary the sentence imposed at first instance by deleting the order that the term of imprisonment be suspended after serving a period of 12 months imprisonment to an order that the term of imprisonment be suspended forthwith and by deleting the order that the sentence be served cumulatively

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.

Citations

AGLC Citation

R v Cannon [2005] QCA 41

Most Recent Citation

R v Hart; ex parte [2006] QCA 39

Cases citing this decision · 11 of 11 shown

Scott v NPQ
[2021] QSC 321 Para 27

…hould apply in arriving at an appropriate sentence. This requires further consideration of the relevant principles, including the cases of R v Cannon [2005] QCA 41 and R v Hart; ex parte Cth DPP [2006] QCA 39.…
R v Kalaja
[2017] QCA 123 Para 16

…to account on the sentence imposed for the trafficking in cannabis the custody that was served between 27 April and 30 June 2016. See also R v Cannon [2005] QCA 41 at [7], [14] and [20]-[21] and R v Fabre [2008] QCA 386 at [14]-[15], and the rationale for taking such a period into account that was canvassed, but…
R v Saggers
[2016] QCA 344

…2013] QCA 343 , cited R v Baradel [2016] QCA 114 , distinguished R v Barton [2006] QCA 367 , distinguished R v Cannon [2005] QCA 41 , cited R v Fabre [2008] QCA 386 , cited R v McAway [2008] QCA 401 , distinguished R v Mullins [2007] QCA 418 , distinguished R v Reid [2013] QCA 190 , distinguished R v Skedgwell […
R v Maksoud
[2016] QCA 115 Para 2

…v Renzella [1997] 2 VR 88 and R v Arts & Griggs (1997) 93 A Crim R 56. This Court has recently endorsed that general approach: see R v Cannon [2005] QCA 41. I note that the Victorian Court of Appeal has also continued to endorse the same general approach: see R v Wade [2005] VSCA 276, R v Black [2007] VSCA 82, a…
R v Lappan
[2015] QCA 180 Para 19

…elevant charges[14], plainly made that course appropriate in the present case. [13] R v Ainsworth [2000] QCA 163; R v Voss [2000] QCA 176; R v Cannon [2005] QCA 41; R v Fabre [2008] QCA 386 (especially at [14]-[15]). [14]See R 28; R 8-9.…
The Queen v Cherry
[2014] QSC 58 Para 1

…consideration, was held to justify a re-opening. So in that sense facts that did not obtain at the time of the hearing were brought into account. [22][2005] QCA 41…
R v George
[2013] QCA 302 Para 1

…r 15 months and the imposition of a head sentence of about three months. [4] R v Skedgwell [1999] 2 Qd R 97; R v Ainsworth [2000] QCA 163; R v Cannon [2005] QCA 41.…
Geale v Tasmania
[2009] TASSC 28

…ing R v Renzella [1997] 2 VR 88 and R v Arts & [B]riggs (1997) 93 A Crim R 56. This Court has recently endorsed that general approach: see R v Cannon [2005] QCA 41. I note that the Victorian Court of Appeal has also continued to endorse the same general approach: see R v Wade [2005] VSCA 276, R v Black [2007] VS…
R v Fabre
[2008] QCA 386 Para 1

…uding R v Renzella [1997] 2 VR 88 and R v Arts & Griggs (1997) 93 A Crim R 56. This Court has recently endorsed that general approach: see R v Cannon [2005] QCA 41. I note that the Victorian Court of Appeal has also continued to endorse the same general approach: see R v Wade [2005] VSCA 276, R v Black [2007] VS…
R v Cannon
[2007] QCA 205 Para 1

…tence was varied to a period of two years imprisonment suspended forthwith and the order making the sentence cumulative was set aside. [8] R v Cannon [2005] QCA 41; CA No 293 of 2004, 28 February 2005…
R v Hart; ex parte
[2006] QCA 39 Para 1

…o have been was a relevant personal circumstance upon which Mr Hart could rely for some mitigation of an otherwise appropriate penalty. In R v Cannon [2005] QCA 41 this Court reaffirmed the existence of a general sentencing discretion to consider as a mitigating factor a period of presentence custody which could…

View all 11 citing cases →

Cases cited in this decision · 3 of 3 shown

R v Cannon
[2004] QCA 440 Para 1

…ordered by this Court on 19 November 2004[1] so that the cumulative nature of the learned sentencing judge's order now has no effect. [1] R v Cannon [2004] QCA 440; CA No 74 of 2004, 19 November 2004.…
R v Ainsworth
[2000] QCA 163 Para 1

…it is appropriate to take the whole of the pre-sentence custody into account at the first opportunity, a sentencing judge is not obliged so to do. [2][2000] QCA 163; CA No 26 of 2000, 5 May 2000. [3][1999] 2 Qd R 97.…
Qd R
[1988] QCA 93

…ct 1992 (Qld), s 161 R v Ainsworth [2000] QCA 163; CA No 26 of 2000, 5 May 2000, applied R v Skedgwell [1999] 2 Qd R; [1988] QCA 93; CA No 434 of 1997, 15 May 1988, applied COUNSEL: C Reid for the applicant R G Martin SC for the respondent SOLICITORS: Legal Aid Queensland for the applicant Director of Public Pro…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
161 2 mentions (from Para 1)

CITATION:	R v Cannon [2005] QCA 41
PARTIES:	R v CANNON, Charles Edward (applicant/appellant)
FILE NO/S:	CA No 293 of 2004 DC No 263 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	28 February 2005
DELIVERED AT:	Brisbane
HEARING DATE:	8 February 2005
JUDGES:	McMurdo P, Williams JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Grant the application for leave to appeal against sentence 2. Allow the appeal against sentence 3. Vary the sentence imposed at first instance by deleting the order that the term of imprisonment be suspended after serving a period of 12 months imprisonment to an order that the term of imprisonment be suspended forthwith and by deleting the order that the sentence be served cumulatively
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant convicted for home invasion offences and sentenced to a period of imprisonment – where applicant subsequently convicted after trial of attempting to procure the commission of a criminal act and sentenced to two years imprisonment to be suspended after serving 12 months – where that sentence to be served cumulatively on sentence for home invasion offences – where sentence for home invasion offences subsequently set aside – where applicant served 304 days pre-sentence custody on remand for offence of attempting to procure the commission of a criminal act and other offences – where that pre-sentence custody was not taken into account by sentencing judge – where applicant served approximately 100 days of sentence imposed – whether pre-sentence custody should be taken into account – whether sentence manifestly excessive Penalties and Sentences Act 1992 (Qld), s 161 R v Ainsworth [2000] QCA 163; CA No 26 of 2000, 5 May 2000, applied R v Skedgwell [1999] 2 Qd R; [1988] QCA 93; CA No 434 of 1997, 15 May 1988, applied
COUNSEL:	C Reid for the applicant R G Martin SC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent