R v Chapman - [2004] QCA 177

SUPREME COURT OF QUEENSLAND

CITATION:

R v Chapman [2004] QCA 177

PARTIES:

R
v
CHAPMAN, Shane Terry

(applicant)

FILE NO/S:

CA No 71 of 2004

DC No 3387 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

28 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

20 May 2004

JUDGES:

McMurdo P and Chesterman and Atkinson JJ

Judgment of the Court

ORDERS:

1. Leave to extend time within which to file a notice of application for leave to appeal against sentence refused

2. Leave to set aside the abandonment of the application of leave to appeal refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – PRACTICE AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – PROCEDURE – QUEENSLAND – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where applicant convicted of break and enter dwelling with intent, unlawful wounding, deprivation of liberty, going armed in public and wilful damage – where applicant filed and abandoned appeal against sentence – whether prosecution made errors in assertions of facts before sentencing judge – where impugned facts would not have affected sentence

Criminal Practice Rules 1999 (Qld), r 69

COUNSEL:

The applicant appeared on his own behalf

R G Martin for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

THE COURT: The applicant, Shane Terry Chapman, has sought an extension of time within which to file a notice of application for leave to appeal against sentence. The sentences, in respect of which the applicant seeks the extension of time, were imposed in the District Court on 10 December 2002. He was sentenced to 6 years’ imprisonment on one count of break and enter a dwelling with intent; 4 years’ imprisonment for unlawful wounding; 3 years’ imprisonment for deprivation of liberty; and 2 years’ imprisonment each for one count of going armed in public and one count of wilful damage. Each sentence was to be served concurrently. In addition, the balance of a suspended sentence imposed on 6 March 2002, 12 months’ imprisonment was activated. A declaration was made under s 161 of the Penalties and Sentences Act (Qld) that time spent in pre-sentence custody be deemed to be time already spent under the sentence. A recommendation was made for post-prison community based release after the applicant had served 2 years’ imprisonment.

On 17 April 2003, the applicant filed a notice of appeal application. The application was abandoned on 6 June 2003. Pursuant to r 69 of the Criminal Practice Rules 1999 (Qld), an application for leave to appeal is taken to be refused by the court when the notice of abandonment is given to the registrar. However, if the court considers it necessary in the interests of justice, the court may set aside the abandonment and reinstate the application. We would give leave to the applicant, if it be necessary,…

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 Chapman

Details

AGLC: R v Chapman [2004] QCA 177
Case: [2004] QCA 177
Decision Date: 28 May 2004

CaseChat Overview and Summary

The case of R v Chapman involved the defendant, Chapman, who was convicted on multiple charges including break and enter dwelling with intent, unlawful wounding, deprivation of liberty, going armed in public, and wilful damage. Chapman had filed an appeal against the sentence imposed by the court but subsequently abandoned it. Chapman sought leave to extend the time within which to file a notice of application for leave to appeal against the sentence, as well as leave to set aside the abandonment of the application for leave to appeal. The prosecution argued that Chapman's appeal was untimely and that any errors in the assertions of facts before the sentencing judge would not have affected the sentence.

The central legal issues before the court were whether Chapman was entitled to an extension of time to file a notice of appeal against sentence and whether the abandonment of the application for leave to appeal could be set aside. The court needed to consider the provisions of the Criminal Appeal Act and the relevant case law to determine if the prosecution's assertions of error were indeed inconsequential to the sentence, and whether Chapman's delay in pursuing his appeal was justifiable. The court also had to weigh the principle of finality in litigation against the need to ensure that justice is done in individual cases.

The court found that Chapman's appeal against the sentence was indeed untimely, and any errors made in the assertions of facts before the sentencing judge would not have affected the sentence. The court held that the prosecution's arguments were well-founded and that the impugned facts were of no consequence in the sentencing process. As such, the court refused Chapman leave to extend the time within which to file a notice of application for leave to appeal against sentence. Additionally, the court ruled that the abandonment of the application for leave to appeal was final and could not be set aside. The court emphasised the importance of adhering to the statutory time limits for appeals and the principle of finality in litigation.

In summary, the court refused Chapman leave to extend the time within which to file a notice of application for leave to appeal against sentence and also refused leave to set aside the abandonment of the application for leave to appeal. The court's decision was based on the finding that the prosecution's errors in the assertions of facts before the sentencing judge would not have affected the sentence, and that Chapman's delay in pursuing his appeal was unjustifiable.

Orders

Orders of the court

1. Leave to extend time within which to file a notice of application for leave to appeal against sentence refused

2. Leave to set aside the abandonment of the application of leave to appeal 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.

CITATION:	R v Chapman [2004] QCA 177
PARTIES:	R v CHAPMAN, Shane Terry (applicant)
FILE NO/S:	CA No 71 of 2004 DC No 3387 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	28 May 2004
DELIVERED AT:	Brisbane
HEARING DATE:	20 May 2004
JUDGES:	McMurdo P and Chesterman and Atkinson JJ Judgment of the Court
ORDERS:	1. Leave to extend time within which to file a notice of application for leave to appeal against sentence refused 2. Leave to set aside the abandonment of the application of leave to appeal refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – PRACTICE AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – PROCEDURE – QUEENSLAND – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where applicant convicted of break and enter dwelling with intent, unlawful wounding, deprivation of liberty, going armed in public and wilful damage – where applicant filed and abandoned appeal against sentence – whether prosecution made errors in assertions of facts before sentencing judge – where impugned facts would not have affected sentence Criminal Practice Rules 1999 (Qld), r 69
COUNSEL:	The applicant appeared on his own behalf R G Martin for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent