SUPREME COURT OF QUEENSLAND
CITATION: R v Cassar; ex parte A-G [2001] QCA 300 PARTIES: R
v
CASSAR, Grant Jason
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)FILE NO/S: CA No 95 of 2001
DC No 888 of 1991DIVISION: Court of Appeal PROCEEDING: Sentence Appeal by A-G (Qld) ORIGINATING COURT: District Court at Brisbane
DELIVERED ON: 31 July 2001 DELIVERED AT: Brisbane HEARING DATE: 25 July 2001 JUDGES: de Jersey CJ, Thomas and Williams JJA
Judgment of the CourtORDER: 1. Appeal allowed.
2. Set aside the orders made by the District Court on 11 April 2001.
3. Confirm the pendency of the orders made in the District Court upon the sentencing of the respondent on 21 June 1991.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – appeal against Judge’s decision to re-open sentence on basis of “clear factual error of substance” – where error specified as “a reasonable expectation” as to likely parole date – where such expectation rested on condition that respondent properly conduct himself in prison – where respondent did not properly conduct himself – where s 188 concerns only position obtaining at time of sentencing – whether sentencing court clearly in error – whether s 188 encompasses re-opening in these circumstances – whether a sentencing Judge’s expectation as to parole a matter of fact or merely a forecast
Penalties and Sentences Act 1992 (Qld), s 188, s 188(1)(c)
R v Abbott SC No 437 of 1999, 27 June 2001, referred to
R v Kelly [2001] QCA 292; CA No 106 of 2001, 27 July 2001, referred to
R v Mackenzie [2000] QCA 324; CA No 353 of 1999, 11 August 2000, distinguished
Williams v Queensland Community Corrections Board [2000] QCA 75; Appeal No 6237 of 1999, 17 March 2000, referred toCOUNSEL: MJ Byrne QC for the appellant
AJ MacSporran for the respondentSOLICITORS: Director of Public Prosecutions (Queensland) for the appellant
Dearden Lawyers for the respondent
THE COURT: The Hon the Attorney General appeals against a learned District Court Judge’s decision to re-open criminal sentencing proceedings in relation to the respondent which had been conducted about a decade earlier in the District Court. The ground for reopening was that the Court at that earlier time determined upon its sentences on the basis of “a clear factual error of substance” (s 188(1)(c) Penalties and Sentences Act 1992).
His Honour Judge Shanahan, as he then was, had sentenced the respondent on 21 June 1991, upon his pleading guilty, in relation to nine counts of armed robbery, one while in company, and two of unlawful use of a motor vehicle with a circumstance of aggravation. The offences concerned the theft of substantial sums of money from financial institutions, in many cases with actual violence, while the respondent was either armed, or pretending to be armed, with firearms. They occurred over…
Keep reading for free
Create a free CaseChat account to read R v Cassar; Ex parte Attorney-General (Qld) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2001] QCA 300
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the sentencing Judge’s expectation regarding the respondent’s likely parole date constituted a matter of fact or merely a forecast. The error in question pertained to a reasonable expectation about the parole date, which was contingent upon the respondent's proper conduct in prison. As the respondent did not conduct himself properly, the expectation did not materialise. The court had to consider whether the sentencing Judge’s expectation was a factual error of substance that warranted reopening the sentence under section 188.
The court found that the sentencing Judge's expectation concerning the respondent's parole was not a matter of fact but rather a forecast. Section 188 of the legislation was held to concern only the position obtaining at the time of sentencing. Therefore, the court concluded that the sentencing court was not clearly in error, and the specified expectation did not constitute a clear factual error warranting the reopening of the sentence. Consequently, the appeal was allowed, the orders made by the District Court on 11 April 2001 were set aside, and the pendency of the orders made in the District Court upon the sentencing on 21 June 1991 was confirmed.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders made by the District Court on 11 April 2001.
3. Confirm the pendency of the orders made in the District Court upon the sentencing of the respondent on 21 June 1991.
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.