R v Cassar; Ex parte Attorney-General (Qld)

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 1991

DIVISION:

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 Court

ORDER:

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 to

COUNSEL:

MJ Byrne QC for the appellant
AJ MacSporran for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Dearden Lawyers for the respondent

1. 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).

1. 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…