R v Cant - [2014] QCA 334

SUPREME COURT OF QUEENSLAND

CITATION: R v Cant [2014] QCA 334

PARTIES:

R v CANT, Craig
(applicant)

FILE NO/S:

CA No 108 of 2014 SC No 549 of 2013
DIVISION: Court of Appeal
PROCEEDING: Miscellaneous Application – Criminal
ORIGINATING
COURT: Supreme Court at Brisbane
DELIVERED ON: 16 December 2014
DELIVERED AT: Brisbane
HEARING DATE: 6 November 2014
JUDGES: Gotterson and Morrison JJA and McMeekin J
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made
ORDER: The application is refused.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – POST-CUSTODIAL ORDERS – PAROLE – BREACH AND REVOCATION –
where the applicant was sentenced in 2001 and 2004 for

federal drug offences – where the applicant was released on parole – where the applicant was issued a Notice of Revocation due to breaches – where the breaches included travelling

interstate without obtaining written permission of the authorised Queensland Corrective Services officer and associating with someone who unlawfully possesses, uses or sells any
substance that is a drug or a narcotic preparation – where
parole was revoked
CRIMINAL LAW – PROCEDURE – WARRANTS,
ARRESTS, SEARCH, SEIZURE AND INCIDENTAL
POWERS – WARRANTS – GENERALLY – where the

applicant applied to a Queensland magistrate for the issue of a warrant under s 19AW(1) of the Crimes Act 1914 (Cth) to

fix a new non-parole period – where a new non-parole period of 39 months was set – where that amount was half way
between the date of revocation of parole and the full time

release date – where the applicant appealed the magistrate’s decision to a single judge of the Supreme Court – where the
primary judge confirmed the non-parole period of 39 months
– where the applicant alleged that 39 months was excessive in
the circumstances – where the applicant sought to argue on

appeal that because he was not brought before the magistrate as a consequence of being arrested under s 19AV of the Crimes Act, the magistrate lacked the power to issue the

warrant under s 19 AW – whether that contention is open to the applicant – where the applicant also advanced that
particular facts against him were incorrect
Crimes Act 1914 (Cth), s 19AU, s 19AV, s 19AW, s 19AY
Cant v Commonwealth Director of Public Prosecutions
[2014] QSC 62, related
Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011]
HCA 10, considered
COUNSEL: The applicant appeared on his own behalf
S J Hamlyn-Harris for the respondent
SOLICITORS: The applicant appeared on his own behalf
Director of Public Prosecutions (Commonwealth) for the
respondent

GOTTERSON JA: I agree with the conclusion reached by Morrison JA and the order he proposes.
I also agree with his Honour’s view that the manner in which the case for the
applicant was conducted before the learned magistrate and then the learned primary
judge makes it unnecessary to decide the correctness of the applicant’s contention that the words “under section 19AV” in the introductory clause to s 19AW…

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.

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Details

Case: [2014] QCA 334
Decision Date: 16 December 2014

CaseChat Overview and Summary

The matter before the court was an appeal by the applicant, who was sentenced in 2001 and 2004 for federal drug offences, against a decision to revoke his parole. The applicant had been released on parole and subsequently issued a Notice of Revocation due to breaches, including travelling interstate without permission and associating with someone who unlawfully possesses, uses or sells a drug. The applicant applied to a Queensland magistrate for the issue of a warrant under section 19AW(1) of the Crimes Act 1914 (Cth) to fix a new non-parole period, which was set at 39 months. The applicant appealed the magistrate's decision to a single judge of the Supreme Court, arguing that the 39-month non-parole period was excessive. The applicant also contended that the magistrate lacked the power to issue the warrant under section 19AW because he was not brought before the magistrate as a consequence of being arrested under section 19AV of the Crimes Act.

The court considered the applicant's arguments, including his assertion that various facts in the Statement of Facts were untrue. The court found that the applicant's assertions were unproven and lacked the necessary level of proof. The court also noted that the applicant had previously admitted to travelling interstate, contrary to his instructions to the QC Parole Assistance organisation. The court concluded that the applicant had not demonstrated any error by the learned primary judge, whether of fact or law, and that the decision below was plainly correct. The applicant's application was refused.

The court's reasoning was based on the applicant's admissions and the lack of proof for his assertions. The court found that the applicant's contention that the magistrate lacked the power to issue the warrant under section 19AW was not open to him because he was not brought before the magistrate as a consequence of being arrested under section 19AV of the Crimes Act. The court also found that the 39-month non-parole period was appropriate, given that it was halfway between the date of revocation of parole and the full time release date. The court rejected the applicant's contentions and confirmed the non-parole period of 39 months.

The final orders of the court were that the application is refused. The court found that the applicant had not demonstrated any error by the learned primary judge, whether of fact or law, and that the decision below was plainly correct. The court also confirmed the non-parole period of 39 months. The applicant's application was refused.

Orders

Orders of the court

The application is 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

The applicant also wished to assert that various other facts in the Statement of Facts were untrue for one reason or another. All of these depended upon unproven assertions by him as to how the Federal agent had misled the court, or how the 58 Federal Police had acted improperly and even corruptly. Assertions of such a serious nature would require a greater level of proof than that evident from the bare assertions by the applicant. Not least in that consideration is the fact that when the QC Parole Assistance organisation responded on behalf of the applicant to the Notice of Revocation, on 29 October 2012 the following response was given in respect of the breach which entailed travelling out of the State of Queensland: “In relation to point (a) out client has instructed that he has not left the state of Queensland and did not travel interstate.”[59] In light of the applicant’s admissions, to the magistrate, the learned primary judge and before this Court, that he did, in fact travel interstate, the instructions given to the QC Parole Assistance organisation were clearly false. Contentions based on the bare assertions by the applicant should be rejected. Conclusion The applicant has not demonstrated that there was any error by the learned primary judge, whether of fact or law. On the way in which the hearing was conducted before the magistrate, and before the learned primary judge, the decision below was plainly correct. I would refused the application. [59] McMEEKIN J: I agree with the reasons of Morrison JA and the order his Honour proposes.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Cant [2014] QCA 334
PARTIES:	R v CANT, Craig
(applicant)
FILE NO/S:	CA No 108 of 2014 SC No 549 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Criminal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	16 December 2014
DELIVERED AT:	Brisbane
HEARING DATE:	6 November 2014
JUDGES:	Gotterson and Morrison JJA and McMeekin J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	The application is refused.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – POST-CUSTODIAL ORDERS – PAROLE – BREACH AND REVOCATION –
where the applicant was sentenced in 2001 and 2004 for
federal drug offences – where the applicant was released on parole – where the applicant was issued a Notice of Revocation due to breaches – where the breaches included travelling
interstate without obtaining written permission of the authorised Queensland Corrective Services officer and associating with someone who unlawfully possesses, uses or sells any
substance that is a drug or a narcotic preparation – where
parole was revoked
CRIMINAL LAW – PROCEDURE – WARRANTS,
ARRESTS, SEARCH, SEIZURE AND INCIDENTAL
POWERS – WARRANTS – GENERALLY – where the
applicant applied to a Queensland magistrate for the issue of a warrant under s 19AW(1) of the Crimes Act 1914 (Cth) to
fix a new non-parole period – where a new non-parole period of 39 months was set – where that amount was half way
between the date of revocation of parole and the full time
release date – where the applicant appealed the magistrate’s decision to a single judge of the Supreme Court – where the
primary judge confirmed the non-parole period of 39 months
– where the applicant alleged that 39 months was excessive in
the circumstances – where the applicant sought to argue on
appeal that because he was not brought before the magistrate as a consequence of being arrested under s 19AV of the Crimes Act, the magistrate lacked the power to issue the
warrant under s 19 AW – whether that contention is open to the applicant – where the applicant also advanced that
particular facts against him were incorrect
Crimes Act 1914 (Cth), s 19AU, s 19AV, s 19AW, s 19AY
Cant v Commonwealth Director of Public Prosecutions
[2014] QSC 62, related Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10, considered
COUNSEL:	The applicant appeared on his own behalf S J Hamlyn-Harris for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Commonwealth) for the respondent