R v Cant - [2015] QSC 311

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cant [2015] QSC 311

PARTIES:

R
v
CRAIG CANT

(applicant)

FILE NO/S:

SC No 549 of 2013

DIVISION:

Trial Division

PROCEEDING:

Application to reopen sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

3 November 2015

DELIVERED AT:

Brisbane

HEARING DATE:

22 September 2015, further submissions 29 September and 2 October 2015

JUDGE:

Ann Lyons J

ORDERS:

1. Application pursuant to s 188(1)(c) of the Penalties and Sentences Act 1992 (Qld) to reopen the sentencing proceedings conducted on 22 April 2015 is granted.

2. Sentence is varied by ordering that pursuant to s 159A(3) of the Penalties and Sentences Act 1992 (Qld), 176 days spent in pre-sentence custody between 7 August 2012 and 29 January 2013 be deemed time already served under the sentence.

3. Sentence imposed is otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – FACTUAL BASIS FOR SENTENCE – GENERALLY – where the applicant pleaded guilty to one count of trafficking in dangerous drugs, nine counts of supplying a dangerous drug and two counts of producing a dangerous drug – where the applicant was sentenced to a period of eight years imprisonment in relation to the one count of trafficking in dangerous drugs and concurrent periods of 12 months imprisonment in relation to the nine counts of supplying a dangerous drug and two counts of producing a dangerous drug – where the applicant argues that the agreed schedule of facts tendered at the sentencing hearing contained factual errors of substance – where the applicant argues that the sentence imposed lacked parity with the sentences imposed on his co-offenders – where the applicant argues that the head sentence of eight years imprisonment was excessive in the circumstances – where the applicant argues that time already served in pre-sentence custody should have been declared at the sentencing hearing – whether the sentence proceeded on a clear factual error of substance sufficient to invoke the reopening of the sentence

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS

– TIME SPENT IN CUSTODY – where it was indicated at the sentencing hearing that time spent in pre-sentence custody could not be declared pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) – whether time spent in pre-sentence custody should have been declared at the sentencing hearing

Penalties and Sentences Act 1992 (Qld), s 159A, s 188

Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, followed
R v Cassar; ex parte Attorney-General (Qld) [2002] 1 Qd R 386; [2001] QCA 300, followed
R v Christensen [2007] QSC 173, followed
R v Davis (1999) 109 A Crim R 314, followed
R v Inns (1974) 60 Cr App R 231, followed

COUNSEL:

The applicant appeared on his own behalf

G Cash for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

The applicant, Craig Cant, applies pursuant to s 188(1)(c) of the Penalties and Sentences Act 1992…

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 Cant

Details

AGLC: R v Cant [2015] QSC 311
Case: [2015] QSC 311
Decision Date: 3 November 2015

CaseChat Overview and Summary

Craig Cant applies to the court to reopen the sentence imposed on him on 22 April 2015. He pleaded guilty to one count of trafficking in dangerous drugs, nine counts of supplying a dangerous drug and two counts of producing a dangerous drug. He was sentenced to a period of eight years imprisonment in relation to the one count of trafficking in dangerous drugs and concurrent periods of 12 months imprisonment in relation to the nine counts of supplying a dangerous drug and two counts of producing a dangerous drug. He argues that the agreed schedule of facts tendered at the sentencing hearing contained factual errors of substance. He also argues that the sentence imposed lacked parity with the sentences imposed on his co-offenders, that the head sentence of eight years imprisonment was excessive in the circumstances, and that time already served in pre-sentence custody should have been declared at the sentencing hearing. The court must decide whether the sentence proceeded on a clear factual error of substance sufficient to invoke the reopening of the sentence and whether time spent in pre-sentence custody should have been declared at the sentencing hearing.

The court found that the applicant’s submission that the agreed schedule of facts contained factual errors of substance was not established. However, the court found that the sentence imposed lacked parity with the sentences imposed on his co-offenders and that the sentence imposed was excessive. The court found that the sentence imposed was not proceeding on a clear factual error of substance, but that the applicant was entitled to have time already served in pre-sentence custody declared at the sentencing hearing. The court granted the application to reopen the sentence and varied the sentence by ordering that 176 days spent in pre-sentence custody be deemed time already served under the sentence.

The court granted the application to reopen the sentence imposed on the applicant. The sentence is varied by ordering that 176 days spent in pre-sentence custody be deemed time already served under the sentence. The sentence imposed is otherwise confirmed.

Orders

Orders of the court

1. Application pursuant to s 188(1)(c) of the Penalties and Sentences Act 1992 (Qld) to reopen the sentencing proceedings conducted on 22 April 2015 is granted.

2. Sentence is varied by ordering that pursuant to s 159A(3) of the Penalties and Sentences Act 1992 (Qld), 176 days spent in pre-sentence custody between 7 August 2012 and 29 January 2013 be deemed time already served under the sentence.

3. Sentence imposed is otherwise confirmed.

Background

Background to the litigation

The applicant, Craig Cant, applies pursuant to s 188(1)(c) of the Penalties and Sentences Act 1992 (Qld) to reopen the sentence imposed on him on 22 April 2015. Section 188(1)(c) provides that a sentence can be reopened if the sentence imposed was decided on a “clear factual error of substance”. The issue in this application therefore is whether the sentence proceeded on a clear factual error which was of “substance”.Background The applicant, together with Peter Hogan and Nigel Munt, was charged on indictment 549 of 2013 with one count of unlawfully trafficking in the dangerous drug methylamphetamine over a twelve month period. The applicant was also charged with nine counts of supplying the dangerous drug methylamphetamine and two counts of producing the dangerous drug cannabis. Nigel Munt was further charged on the indictment with twenty counts of supplying methylamphetamine. Peter Hogan was further charged on the indictment with two counts of producing the dangerous drug cannabis. The indictment was presented on 27 September 2013. On 21 March 2014, the charges against Peter Hogan were listed for sentence. On 19 May 2014, he pleaded guilty to all the charges against him and was sentenced to five years imprisonment suspended after serving a period of 17 months with an operational period of five years in relation to the one count of trafficking. In relation to the two counts of producing the dangerous drug cannabis, he was sentenced to concurrent periods of six months and three months imprisonment. On 12 September 2014, the remaining charges against Craig Cant and Nigel Munt were listed for trial in the sittings commencing 7 April 2015 with an estimate of seven to eight weeks. On 17 March 2015, counsel for Nigel Munt indicated that he would be entering a guilty plea. The trial against Craig Cant remained as listed. On 8 April 2015, Nigel Munt was arraigned and he pleaded guilty to all the counts on the indictment which involved him. He was sentenced on that date to 3 years imprisonment on the one count of trafficking. In relation to the twenty counts of supply, he was sentenced to concurrent periods of six months imprisonment on each count. The sentence was fully suspended with an operational period of 4 years. On 9 April 2015, the trial against Craig Cant remained as listed with a commencement date of 13 April 2015. On 13 April 2015, Mr Cant was arraigned before a jury panel and he pleaded “not guilty” to all the counts on the indictment which involved him. An application to adjourn the trial by counsel for Mr Cant was refused. A jury was then empanelled for the purpose of a trial. The trial before the jury was then adjourned to 14 April 2015 to allow a Basha hearing to take place in relation to the evidence of Mr Cant’s co-accused, Nigel Munt, and to provide the defence with an opportunity to consider further telephone intercept evidence which had been provided to Mr Cant. On 14 April 2015, the trial was further adjourned to commence on 15 April 2015.

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 Cant [2015] QSC 311
PARTIES:	R v CRAIG CANT (applicant)
FILE NO/S:	SC No 549 of 2013
DIVISION:	Trial Division
PROCEEDING:	Application to reopen sentence
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	3 November 2015
DELIVERED AT:	Brisbane
HEARING DATE:	22 September 2015, further submissions 29 September and 2 October 2015
JUDGE:	Ann Lyons J
ORDERS:	*1. Application pursuant to s 188(1)(c) of the Penalties and Sentences Act* 1992 (Qld) to reopen the sentencing proceedings conducted on 22 April 2015 is granted.** 2. Sentence is varied by ordering that pursuant to s 159A(3) of the Penalties and Sentences Act 1992 (Qld), 176 days spent in pre-sentence custody between 7 August 2012 and 29 January 2013 be deemed time already served under the sentence. 3. Sentence imposed is otherwise confirmed.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – FACTUAL BASIS FOR SENTENCE – GENERALLY – where the applicant pleaded guilty to one count of trafficking in dangerous drugs, nine counts of supplying a dangerous drug and two counts of producing a dangerous drug – where the applicant was sentenced to a period of eight years imprisonment in relation to the one count of trafficking in dangerous drugs and concurrent periods of 12 months imprisonment in relation to the nine counts of supplying a dangerous drug and two counts of producing a dangerous drug – where the applicant argues that the agreed schedule of facts tendered at the sentencing hearing contained factual errors of substance – where the applicant argues that the sentence imposed lacked parity with the sentences imposed on his co-offenders – where the applicant argues that the head sentence of eight years imprisonment was excessive in the circumstances – where the applicant argues that time already served in pre-sentence custody should have been declared at the sentencing hearing – whether the sentence proceeded on a clear factual error of substance sufficient to invoke the reopening of the sentence CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – TIME SPENT IN CUSTODY – where it was indicated at the sentencing hearing that time spent in pre-sentence custody could not be declared pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) – whether time spent in pre-sentence custody should have been declared at the sentencing hearing Penalties and Sentences Act 1992 (Qld), s 159A, s 188 Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, followed R v Cassar; ex parte Attorney-General (Qld) [2002] 1 Qd R 386; [2001] QCA 300, followed R v Christensen [2007] QSC 173, followed R v Davis (1999) 109 A Crim R 314, followed R v Inns (1974) 60 Cr App R 231, followed
COUNSEL:	The applicant appeared on his own behalf G Cash for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent