R v Cherry - [2014] QCA 262

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cherry [2014] QCA 262

PARTIES:

R
v
CHERRY, Rodney Michael
(applicant)

FILE NO/S:

CA No 100 of 2014
SC No 49 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

17 October 2014

DELIVERED AT:

Brisbane

HEARING DATE:

17 July 2014

JUDGES:

Margaret McMurdo P and Fraser and Morrison JJA
Judgment of the Court

ORDERS:

1. The application to amend the ground of appeal in the proposed application for leave to appeal is granted.

2. The application for an extension of time to apply for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant was convicted after trial on two counts of murder – where the victims were the applicant's wife and his step-daughter – where the applicant procured his wife's daughter to kill her mother by providing the daughter with the murder weapon – where the applicant then murdered another step-daughter as he believed that she knew of his role in her mother's killing – where the applicant was sentenced in 2002 to life imprisonment on both counts – where a mandatory minimum parole period of 20 years was set – where the applicant was also charged with drug and weapons offences at the time he was charged with the two murders – where the applicant was remanded in custody on all offences until his sentence on the murder offences, a period of 537 days – where the drugs and weapons offences were discontinued as the magistrate considered that in light of the murder offences it was "fruitless to proceed" – where the applicant appealed unsuccessfully against his murder convictions but not his sentence in 2004 – where, 10 years later, the applicant applied to a Trial Division judge for an extension of time to re-open his sentence under s 188 Penalties and Sentences Act 1992 (Qld) – where the applicant contends that the learned sentencing judge would have declared the 537 days pre-sentence custody as time served under the sentence, had the judge known at the time of his sentences for murder that the drug and weapons offences were to be dismissed – where the application to extend time to file the sentence application was granted, but the application was dismissed – where the applicant then filed an extension of time to apply for leave to appeal to the Court of Appeal against the sentences imposed for the murder offences in 2002 – where the applicant is over 11 years late in pursuing his appeal against sentence – where counsel for the applicant sought to amend the grounds of appeal at the hearing – where the applicant contends that the 537 days of presentence custody should have been included as part of his 20 year non-parole period – whether the application for extension of time should be granted

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 Cherry

Details

AGLC: R v Cherry [2014] QCA 262
Case: [2014] QCA 262
Decision Date: 17 October 2014

CaseChat Overview and Summary

The case of R v Cherry involved the applicant who was convicted of two counts of murder and sentenced to life imprisonment with a mandatory minimum parole period of 20 years. The applicant's wife and step-daughter were the victims of the murders, with the applicant procuring his wife's daughter to kill her mother and then murdering another step-daughter. The applicant was also charged with drug and weapons offences, which were later discontinued. The applicant had previously appealed his murder convictions unsuccessfully but did not appeal his sentence until ten years later. The central issue in this case was whether the applicant's application for an extension of time to appeal his sentence should be granted, and if so, whether the 537 days of pre-sentence custody should be considered as part of his non-parole period.

The court had to decide whether the application for an extension of time to file the sentence application should be granted, and if so, whether the applicant's argument that the 537 days of pre-sentence custody should have been included as part of his 20-year non-parole period was valid. The court also had to consider whether the applicant's counsel could amend the grounds of appeal at the hearing. The court found that while the application to amend the ground of appeal in the proposed application for leave to appeal was granted, the application for an extension of time to apply for leave to appeal against sentence was refused. The applicant was over 11 years late in pursuing his appeal against sentence, and the court found that the applicant had not provided a satisfactory explanation for the delay.

In conclusion, the court granted the application to amend the ground of appeal in the proposed application for leave to appeal, but refused the application for an extension of time to apply for leave to appeal against sentence. The court found that the applicant had not provided a satisfactory explanation for the delay and that the applicant was over 11 years late in pursuing his appeal against sentence. The court did not consider the applicant's argument that the 537 days of pre-sentence custody should have been included as part of his 20-year non-parole period as the application for an extension of time was refused.

Orders

Orders of the court

1. The application to amend the ground of appeal in the proposed application for leave to appeal is granted.

2. The application for an extension of time to apply for leave to appeal against sentence is 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 Cherry [2014] QCA 262
PARTIES:	R v CHERRY, Rodney Michael (applicant)
FILE NO/S:	CA No 100 of 2014 SC No 49 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	17 October 2014
DELIVERED AT:	Brisbane
HEARING DATE:	17 July 2014
JUDGES:	Margaret McMurdo P and Fraser and Morrison JJA Judgment of the Court
ORDERS:	1. The application to amend the ground of appeal in the proposed application for leave to appeal is granted. 2. The application for an extension of time to apply for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant was convicted after trial on two counts of murder – where the victims were the applicant's wife and his step-daughter – where the applicant procured his wife's daughter to kill her mother by providing the daughter with the murder weapon – where the applicant then murdered another step-daughter as he believed that she knew of his role in her mother's killing – where the applicant was sentenced in 2002 to life imprisonment on both counts – where a mandatory minimum parole period of 20 years was set – where the applicant was also charged with drug and weapons offences at the time he was charged with the two murders – where the applicant was remanded in custody on all offences until his sentence on the murder offences, a period of 537 days – where the drugs and weapons offences were discontinued as the magistrate considered that in light of the murder offences it was "fruitless to proceed" – where the applicant appealed unsuccessfully against his murder convictions but not his sentence in 2004 – where, 10 years later, the applicant applied to a Trial Division judge for an extension of time to re-open his sentence under s 188 Penalties and Sentences Act 1992 (Qld) – where the applicant contends that the learned sentencing judge would have declared the 537 days pre-sentence custody as time served under the sentence, had the judge known at the time of his sentences for murder that the drug and weapons offences were to be dismissed – where the application to extend time to file the sentence application was granted, but the application was dismissed – where the applicant then filed an extension of time to apply for leave to appeal to the Court of Appeal against the sentences imposed for the murder offences in 2002 – where the applicant is over 11 years late in pursuing his appeal against sentence – where counsel for the applicant sought to amend the grounds of appeal at the hearing – where the applicant contends that the 537 days of presentence custody should have been included as part of his 20 year non-parole period – whether the application for extension of time should be granted