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R v Carter

R v Carter

Case [2008] QCA 226 8 August 2008

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Carter [2008] QCA 226

PARTIES:

R
v
CARTER, John Francis
(applicant)

FILE NO/S:

CA No 99 of 2008
SC No 43 of 2008
SC No 215 of 2008
SC No 747 of 2007
SC No 1208 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2008

JUDGES:

Keane, Muir and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

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 REFUSED – GENERALLY – where the applicant pleaded guilty to two counts of possessing a dangerous drug with a circumstance of aggravation, one count of possessing a dangerous drug, two counts of receiving stolen property with a circumstance of aggravation and a number of summary offences – where the applicant was sentenced to an effective three years imprisonment with a fixed parole release date at 15 months – where the applicant had a prior conviction for possession of a dangerous drug, but no conviction recorded – whether the sentencing judge erred in proceeding on the footing that the applicant's criminal history included a conviction for a drug offence – whether the sentence imposed was within the appropriate range

Penalties and Sentences Act 1992 (Qld), s 12(4)(b)(iii)

R v Hesketh; ex parte A-G (Qld)[2004] QCA 116, considered
R v Kunst [2003] 2 Qd R 98; [2002] QCA 400, distinguished

COUNSEL:

The applicant appeared on his own behalf
M J Copley for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA:
On 19 March 2008 the applicant pleaded guilty to two counts of possessing a dangerous drug with a circumstance of aggravation, one count of possessing a dangerous drug, two counts of receiving stolen property with a circumstance of aggravation and a number of summary offences. He was sentenced to three years imprisonment in respect of each of the drug related offences and

18 months for each of the receiving counts. For an offence of driving whilst disqualified, he was sentenced to six months imprisonment and was disqualified from holding or obtaining a driver's licence for three years. For each of the other summary offences, he was sentenced to six months imprisonment. All terms of imprisonment were to be served concurrently. The learned sentencing judge fixed

8 July 2009 as the date for release on parole. Thus the applicant was required to serve a little over 15 months in prison before his release on parole.

The applicant seeks leave to appeal against his sentence on the ground that it is "manifestly excessive and contrary to law".

The circumstances of the offences

The…

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 Carter

Details

AGLC: R v Carter [2008] QCA 226
Case: [2008] QCA 226
Decision Date: 8 August 2008

CaseChat Overview and Summary

The appeal in R v Carter involved the applicant, who had pleaded guilty to multiple charges, including possession and receipt of dangerous drugs, and receiving stolen property. The applicant's previous criminal history, specifically a prior drug-related offence, was a significant factor in the sentencing process. The applicant was sentenced to a total effective term of three years in prison, with a fixed parole release date set at 15 months. Dissatisfied with the sentence, the applicant sought leave to appeal against the sentence imposed.

The primary legal issue before the court was whether the sentencing judge had erred in considering the applicant's prior drug offence in their criminal history. The applicant argued that the previous offence was not recorded and therefore should not have been taken into account. Additionally, the applicant contended that the sentence imposed was not within the appropriate range given the circumstances. The court was required to determine whether the sentence was just and whether the sentencing judge's approach was legally sound.

The court thoroughly examined the sentencing judge's approach and found no error in the consideration of the applicant's criminal history. The court concluded that the sentencing judge was entitled to proceed on the footing that the applicant had a prior conviction for a drug offence, even though it was not recorded. Furthermore, the court held that the sentence imposed was within the appropriate range and did not constitute a substantial injustice. The court found that the sentence was commensurate with the seriousness of the offences and took into account the applicant's personal circumstances.

As a result of the court's findings, the application for leave to appeal against the sentence was refused. The court's decision upheld the sentence imposed by the sentencing judge and confirmed that the sentence was both legally sound and appropriate given the circumstances of the case.

Orders

Orders of the court

Application for leave 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.

Citations

AGLC Citation

R v Carter [2008] QCA 226

Most Recent Citation

R v Walsh [2008] QCA 391

Cases citing this decision · 11 of 11 shown

Pamtoonda v Commissioner of Police
[2021] QDC 207 Para 19

…es sufficient to warrant the conclusion that the applicant should not be regarded as bound by the conduct of his case in the court below ( R v Carter [2008] QCA 226 at [19]; R v AAF [2008] QCA 235 at [11]). No such circumstances are apparent here." (emphasis in original) [citations omitted]”…
R v Nooryan
[2019] QCA 294 Para 11

…ufficient to warrant the conclusion that the applicant should not be regarded as bound by the conduct of his case in the court below ( R v Carter [2008] QCA 226 at [19]; R v AAF [2008] QCA 235 at [11]). No such circumstances are apparent here.” [20][2009] QCA 9 at [6]; internal citations omitted; emphasis in orig…
R v Lincoln; R v Kister; R v Renwick
[2017] QCA 37 Para 18

…hat Lincoln’s cumulative sentence should be ameliorated for questions of totality.[23] [17]Transcript of Proceedings, 31 May 2016, AB 25. [18][2008] QCA 226. [19][2004] QCA 116. [20][2007] 2 Qd R 87; [2006] QCA 365. [21][2011] QCA 207. [22][2012] QCA 103. [23]Transcript of Proceedings, 31 May 2016, AB 35 – 40.…
R v Rohl
[2015] QCA 78 Para 13

…related convictions, had not previously served any prison sentence. [2][2007] QCA 43. [3][2010] QCA 133. [4][2005] QCA 116. [5][2008] QCA 165. [6][2008] QCA 226. [7][2004] QCA 116.…
R v Hazelgrove
[2013] QCA 243

…hether the sentences imposed were manifestly excessive R v Bryant (2007) 173 A Crim R 88; [2007] QCA 247, considered R v Carter [2008] QCA 226, cited R v Donald [2000] QCA 399, cited R v Harris (2007) 171 A Crim R 267; [2007] NSWCCA 130, cited R v Vaughan [2005] QCA 348, considered COUNSEL: The applicant appeared…
R v Taouk
[2012] QCA 211 Para 1

…encing judge took the plea of guilty into account in the conventional way by ordering the sentence to be suspended after 12 months. [1]See R v Carter [2008] QCA 226 at [19].…
R v Lucas
[2011] QCA 146

…es Act 1992 (Qld), s 160C, s 161B R v AAF [2008] QCA 235, cited R v Bryan; ex parte A-G (Qld) [2003] QCA 18, cited R v Carter [2008] QCA 226, cited R v Honeysett; ex parte A-G (Qld) [2010] QCA 212, cited R v Lewis, ex parte A-G (Qld) [2003] QCA 133, cited R v Thomason; ex parte A-G (Qld) [2011] QCA 9, cited R v W…
R v Hallett
[2009] QCA 96 Para 1

…oposed by the applicant’s counsel at the hearing, the applicant’s contention that it was manifestly excessive is a surprising one: see R v Carter [2008] QCA 226 at [19]. The applicant did not point to any support for that contention in the comparable decisions of this Court.…
R v. Crompton
[2009] QCA 19 Para 1

…he applicant must face significant difficulty in making good a contention that this aspect of the sentence was manifestly excessive: see R v Carter [2008] QCA 226 at [19]; R v AAF [2008] QCA 235 at [11]; R v Walsh [2008] QCA 391 at [23]. In these circumstances it is necessary to observe only that, subject to cons…
R v Frame
[2009] QCA 9

…s with applicant's submissions before sentencing judge — whether sentence manifestly excessive R v AAF [2008] QCA 235, cited R v Carter [2008] QCA 226, cited R v Walsh [2008] QCA 391, cited COUNSEL: C W Heaton for the applicant M J Copley SC for the respondent SOLICITORS: Legal Aid Queensland for the applicant Di…
R v Walsh
[2008] QCA 391 Para 1

…e applicant should not be regarded as bound by the conduct of his case in the court below.[7] No such circumstances are apparent here. [7] R v Carter [2008] QCA 226 at [19]; R v AAF [2008] QCA 235 at [11].…

View all 11 citing cases →

Cases cited in this decision · 2 of 2 shown

R v Hesketh; Ex parte Attorney-General
[2004] QCA 116 Para 1

…[1][2004] QCA 116 at [17]. This difficulty for the applicant is confirmed in the present case by reference to R v Hesketh; ex parte A-G (Qld) [1] where a range of imprisonment of two and a half years to four years was said to be appropriate in relation to the possession of substantial quantities of dangerous drug…
R v Kunst
[2002] QCA 400 Para 1

…[2][2002] QCA 400. The applicant sought to argue by reference to the decision of this Court in R v Kunst [2] that more serious offending than his had attracted sentences which led to a period of imprisonment of 12 months before release on parole. That case does not assist the applicant. It was a case where there…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
12(4)(b)(iii) 2 mentions (from Para 1)

CITATION:	R v Carter [2008] QCA 226
PARTIES:	R v CARTER, John Francis (applicant)
FILE NO/S:	CA No 99 of 2008 SC No 43 of 2008 SC No 215 of 2008 SC No 747 of 2007 SC No 1208 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	8 August 2008
DELIVERED AT:	Brisbane
HEARING DATE:	29 July 2008
JUDGES:	Keane, Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
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 REFUSED – GENERALLY – where the applicant pleaded guilty to two counts of possessing a dangerous drug with a circumstance of aggravation, one count of possessing a dangerous drug, two counts of receiving stolen property with a circumstance of aggravation and a number of summary offences – where the applicant was sentenced to an effective three years imprisonment with a fixed parole release date at 15 months – where the applicant had a prior conviction for possession of a dangerous drug, but no conviction recorded – whether the sentencing judge erred in proceeding on the footing that the applicant's criminal history included a conviction for a drug offence – whether the sentence imposed was within the appropriate range Penalties and Sentences Act 1992 (Qld), s 12(4)(b)(iii) R v Hesketh; ex parte A-G (Qld)[2004] QCA 116, considered R v Kunst [2003] 2 Qd R 98; [2002] QCA 400, distinguished
COUNSEL:	The applicant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent