R v Carter - [2005] QCA 402

SUPREME COURT OF QUEENSLAND

CITATION:

R v Carter [2005] QCA 402

PARTIES:

R
v
CARTER, William Thomas
(applicant)

FILE NO/S:

CA No 257 of 2005
DC No 2979 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

3 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

3 November 2005

JUDGES:

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

ORDER:

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

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME,
NOTICE OF APPEAL AND ABANDONMENT – applicant convicted on own plea of guilty of one count of defrauding the Commonwealth and one count of obtaining a financial advantage by deception – applicant sentenced to two years and six months imprisonment on each count to be released after serving 10 months imprisonment upon entering into a recognisance for $2,500 conditioned that he be of good behaviour for three years – where an explanation has been given as to why the appeal was filed out of time – where there is no merit in the application

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – REPARATION AND RESTITUTION BY OFFENDER –applicant convicted of social security fraud – mitigating weight of pre-sentence restitution – where the applicant had made full restitution of the total amount fraudulently obtained – consideration of the factors the court is required to take into account when sentencing under s 16A of the Crimes Act 1914 (Cth) – where repayment is one of a number of factors taken into account in determining the head sentence and the appropriate ameliorating order

Crimes Act 1914 (Cth) s16A

R v Conway (2001) 121 A Crim R 177; [2001] NSWCCA 51, considered
R v. Hassarati [2005] QCA 102; CA No 417 of 2004, 11 April 2005, considered
R v Holdsworth [1993] QCA 242; CA No 94 of 1993, 22 June 1993, considered
R v Prosser, unreported, Beenleigh District Court, DC No 532 of 1999, 28 March 2000, considered

COUNSEL:

P E Smith for the applicant
S Allen for the respondent

SOLICITORS:

Compass Legal Solutions for the applicant
Director of Public Prosecutions (Commonwealth) for the respondent

ATKINSON J: The applicant was convicted on his own plea of guilty on one count of defrauding the Commonwealth, contrary to s 29D of the Crimes Act 1914 (Cth), and one count of obtaining a financial advantage by deception, contrary to s 134.2(1) of the Criminal Code 1995 (Cth). He was sentenced in the District Court on each count to two and a half years imprisonment to be released after serving 10 months upon his entering into a…

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 [2005] QCA 402
Case: [2005] QCA 402
Decision Date: 3 November 2005

CaseChat Overview and Summary

The appeal in R v Carter involved the applicant who had pleaded guilty to defrauding the Commonwealth and obtaining a financial advantage by deception. He was sentenced to two years and six months imprisonment for each count, with the sentences to run concurrently and a non-parole period of ten months. The applicant sought an extension of time to file a notice of appeal against his sentence, arguing that the delay was due to his legal representation being unaware of the appeal process. The court was required to determine whether the application for an extension of time was justified and whether the appeal against the sentence had any merit.

The court found that the applicant had not provided a satisfactory explanation for the delay in filing the appeal, as the reasons provided were not compelling. The court emphasised that the application for an extension of time was not a matter of absolute right but rather a matter of discretion. The court also noted that the applicant had made full restitution of the total amount fraudulently obtained, which was one of the factors considered in determining the head sentence and the appropriate ameliorating order. The court concluded that there was no merit in the application for an extension of time and dismissed the application.

The court refused the application for an extension of time within which to apply for leave to appeal against the sentence. The applicant's appeal against the sentence was dismissed as the application for an extension of time was not justified. The court emphasised that the reasons provided by the applicant for the delay in filing the appeal were not compelling and that the application for an extension of time was a matter of discretion. The court also noted that the applicant had made full restitution of the total amount fraudulently obtained, which was one of the factors considered in determining the head sentence and the appropriate ameliorating order. The court concluded that there was no merit in the application for an extension of time and dismissed the application.

Orders

Orders of the court

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

Background

Background to the litigation

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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 Carter [2005] QCA 402
PARTIES:	R v CARTER, William Thomas (applicant)
FILE NO/S:	CA No 257 of 2005 DC No 2979 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	3 November 2005
DELIVERED AT:	Brisbane
HEARING DATE:	3 November 2005
JUDGES:	McMurdo P, Williams JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for extension of time within which to apply for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – applicant convicted on own plea of guilty of one count of defrauding the Commonwealth and one count of obtaining a financial advantage by deception – applicant sentenced to two years and six months imprisonment on each count to be released after serving 10 months imprisonment upon entering into a recognisance for $2,500 conditioned that he be of good behaviour for three years – where an explanation has been given as to why the appeal was filed out of time – where there is no merit in the application CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – REPARATION AND RESTITUTION BY OFFENDER –applicant convicted of social security fraud – mitigating weight of pre-sentence restitution – where the applicant had made full restitution of the total amount fraudulently obtained – consideration of the factors the court is required to take into account when sentencing under s 16A of the Crimes Act 1914 (Cth) – where repayment is one of a number of factors taken into account in determining the head sentence and the appropriate ameliorating order Crimes Act 1914 (Cth) s16A R v Conway (2001) 121 A Crim R 177; [2001] NSWCCA 51, considered R v. Hassarati [2005] QCA 102; CA No 417 of 2004, 11 April 2005, considered R v Holdsworth [1993] QCA 242; CA No 94 of 1993, 22 June 1993, considered R v Prosser, unreported, Beenleigh District Court, DC No 532 of 1999, 28 March 2000, considered
COUNSEL:	P E Smith for the applicant S Allen for the respondent
SOLICITORS:	Compass Legal Solutions for the applicant Director of Public Prosecutions (Commonwealth) for the respondent