R v. Christensen - [2007] QCA 370

SUPREME COURT OF QUEENSLAND

CITATION:

R v Christensen [2007] QCA 370

PARTIES:

R
v
CHRISTENSEN, Kim Soborg
(applicant)

FILE NO/S:

CA No 169 of 2007
SC No 764 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

29 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

29 October 2007

JUDGES:

de Jersey CJ, Muir JA and Dutney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for extension of time refused
2. Order pursuant to s 572(3) of the Criminal Code that the indictment be amended to substitute “twenty-second day of December 2003” for “sixteenth day of January 2001”

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant pleaded guilty to money laundering – where offence committed while serving a 10 year term of imprisonment – where applicant sentenced to a cumulative 15 month term for money laundering – where applicant’s previous application to reopen sentence dismissed – where no explanation for substantial delay in filing current application for leave to appeal against sentence – where no reasonable prospect of success – whether application for extension of time should be allowed

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – AMENDMENT – IMMATERIALITY OR ABSENCE OF PREJUDICE – where indictment charged offender with offence commencing in 2001 – where conduct constituting offence occurred after January 2004 – where amendment of date will not prejudice prisoner – whether amendment of indictment should be allowed

Criminal Code Act 1899 (Qld), s 572
Criminal Proceeds Confiscation Act 2002 (Qld), s 250, s 260

R v Fahey, Solomon and AD [2002] Qd R 391; [2001] QCA 82, CA Nos 295, 305, 345, 436 of 2000, 9 March 2001, cited

COUNSEL:

The applicant appeared on his own behalf
M J Copley for the respondent

SOLICITORS:

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

THE CHIEF JUSTICE: On the 20th of March last year, the applicant pleaded guilty to the offence of money laundering. He was represented at the sentencing hearing.

As the case was presented, he had laundered sums, totalling approximately $120,000, at times when he was serving a 10 year term of imprisonment for the offence of carrying on a business of trafficking in amphetamines and cannabis.

For the trafficking offence, he was sentenced on the 1st of November 2001. It was on the 20th of March 2006 that he was sentenced to a cumulative 15 month term for the laundering with eligibility for parole fixed, if it be necessary, at the one-half point.

The sentencing Judge expressly acknowledged totality considerations. He acknowledged that there were no comparative sentences, but allowing for the brazenness of the offending while in custody, plainly moderated the penalty in circumstances where, equally plainly, it had…

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. Christensen

Details

AGLC: R v Christensen [2007] QCA 370
Case: [2007] QCA 370
Decision Date: 29 October 2007

CaseChat Overview and Summary

In the matter of R v Christensen, the applicant, who had previously pleaded guilty to money laundering while serving a 10-year term of imprisonment, sought leave to appeal against the sentence imposed. The applicant was sentenced to a cumulative 15-month term for the money laundering offence, but their previous application to reopen the sentence was dismissed. The primary legal issues before the court were whether an extension of time should be granted for the current application for leave to appeal against the sentence, given the substantial delay and lack of explanation, and whether the amendment of the date on the indictment from January 2001 to December 2003 should be permitted.

The court determined that the applicant had provided no reasonable explanation for the substantial delay in filing the current application, which undermined the prospect of success for the appeal. Additionally, the court found that the amendment of the date on the indictment would not prejudice the applicant, as the conduct constituting the offence occurred after January 2004, making the amendment immaterial. The court concluded that the application for an extension of time should be refused, and granted the order to amend the indictment as requested.

The court's final orders were that the application for extension of time was refused, and an order was made pursuant to section 572(3) of the Criminal Code to amend the indictment by substituting "twenty-second day of December 2003" for "sixteenth day of January 2001".

Orders

Orders of the court

1. Application for extension of time refused

2. Order pursuant to s 572(3) of the Criminal Code that the indictment be amended to substitute “twenty-second day of December 2003” for “sixteenth day of January 2001”

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 Christensen [2007] QCA 370
PARTIES:	R v CHRISTENSEN, Kim Soborg (applicant)
FILE NO/S:	CA No 169 of 2007 SC No 764 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	29 October 2007
DELIVERED AT:	Brisbane
HEARING DATE:	29 October 2007
JUDGES:	de Jersey CJ, Muir JA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for extension of time refused 2. Order pursuant to s 572(3) of the Criminal Code that the indictment be amended to substitute “twenty-second day of December 2003” for “sixteenth day of January 2001”
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant pleaded guilty to money laundering – where offence committed while serving a 10 year term of imprisonment – where applicant sentenced to a cumulative 15 month term for money laundering – where applicant’s previous application to reopen sentence dismissed – where no explanation for substantial delay in filing current application for leave to appeal against sentence – where no reasonable prospect of success – whether application for extension of time should be allowed CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – AMENDMENT – IMMATERIALITY OR ABSENCE OF PREJUDICE – where indictment charged offender with offence commencing in 2001 – where conduct constituting offence occurred after January 2004 – where amendment of date will not prejudice prisoner – whether amendment of indictment should be allowed Criminal Code Act 1899 (Qld), s 572 Criminal Proceeds Confiscation Act 2002 (Qld), s 250, s 260 R v Fahey, Solomon and AD [2002] Qd R 391; [2001] QCA 82, CA Nos 295, 305, 345, 436 of 2000, 9 March 2001, cited
COUNSEL:	The applicant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Qld) for the respondent