R v. Christensen

[2007] QSC 173

SUPREME COURT OF QUEENSLAND

CITATION:

R v Christensen [2007] QSC 173

PARTIES:

THE QUEEN
v
KIM SOBORG CHRISTENSEN
(applicant)

FILE NO:

764/05

DIVISION:

Trial Division

PROCEEDING:

Application to reopen sentence

DELIVERED ON:

20 July 2007

DELIVERED AT:

Brisbane

HEARING DATE:

9 July 2007

JUDGE:

Mackenzie J

ORDER:

The application pursuant to s 188(1)(c) of the Penalties & Sentences Act 1992 (Qld) to reopen sentencing proceedings conducted on 20 March 2006, is refused

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – FACTUAL BASIS FOR SENTENCE – where applicant pleaded guilty to money laundering and was sentenced cumulatively upon a sentence for drug offences – where applicant seeks to reopen sentence alleged to be based on clear factual error of substance –  where applicant contends a concurrent sentence would have been more appropriate – where applicant raises issues of parity in relation to the serious violent offence declaration and the confiscation regime – where applicant submits the sentence imposed has the effect of delaying progression through the corrections system – where applicant raises complaints about aspects of earlier legal representation – where applicant contends he has been subject to punishment contrary to the ‘double jeopardy’ principle – whether the applicant’s grounds evince a clear factual error of substance sufficient to invoke the reopening of sentence

Criminal Code 1899 (Qld) s 16, s 17
Penalties & Sentences Act 1992 (Qld) s 188(1)(c)

R v Cassar; ex parte Attorney-General of Queensland [2001] QCA 300, applied

COUNSEL:

The applicant appeared on his own behalf

B J Merrin for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. MACKENZIE J:   This is an application to reopen a sentence pursuant to               s 188(1)(c) of the Penalties & Sentences Act 1992 (Qld).  On 20 March 2006 the applicant pleaded guilty to money laundering and was sentenced to 15 months imprisonment, to be served cumulatively on a term of 10 years imprisonment he was already serving for trafficking in dangerous drugs.

1. The orders sought are as follows:

“1.         Set aside sentencing out of grievance and cruel and unusual punishment;

2.        And/or to serve concurrent sentence with back date to sentencing “the 20^th March 2006.”;

3.        Order the applicant original parole date 16-1-09.”

1. There is also a request to “revisit by way of direction or declaration to (the applicant’s co-accused) that their convictions be squashed (sic), or a re-sentencing under a lesser charge of possession of tantad (sic) property”.  Since there is no application by any of those parties, such an order cannot be made in these proceedings.     

1. The applicant did not appeal against the cumulative sentence.  Instead, he has applied for reopening of the sentence.  For such an application to succeed it is necessary to establish that the sentence was decided on a “clear factual error of substance”.  Since the application for reopening was not made within 28 days after…