R v. Christensen - [2007] QCA 56

SUPREME COURT OF QUEENSLAND

CITATION:

R v Christensen [2007] QCA 56

PARTIES:

R
v
CHRISTENSEN, Kim Soborg
(applicant)

FILE NO/S:

CA No 304 of 2006
SC No 398 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application
Miscellaneous Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

2 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2007

JUDGES:

de Jersey CJ, Jerrard JA and Holmes JA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Applications dismissed

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – MISCELLANEOUS POWERS OF COURTS AND JUDGES – where there was an application to re-open sentence – where the application was refused – whether there was a right of appeal

Grierson v The King (1938) 60 CLR 431, applied
Mickelberg v The Queen (1988) 167 CLR 259, applied
R v Cassar; ex parte Attorney-General[2001] QCA 300, Appeal No 95 of 2001, 31 July 2001, cited
R v Corrigan[2001] QCA 401, Appeal No 205 of 2001,
24 September 2001, applied
R v MAM[2005] QCA 323, Appeal No 118 of 2005,
30 August 2005, applied
R v Marriner[2006] QCA 32, Appeal No 191 of 2005,
17 February 2006, applied
R v Smith (1968) QWN 50, 114, applied

Crimes (Confiscation) Act 1989 (Qld), s 98
Penalties and Sentences Act 1992 (Qld), s 13A, s 188(1)(c)
Police Powers and Responsibilities Act 2000 (Qld)

COUNSEL:

The applicant appeared on his own behalf
D R MacKenzie for the respondent

SOLICITORS:

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

de JERSEY CJ: On 3 November 2006, the applicant filed in the Court of Appeal a document purporting to appeal against his conviction and sentence. The grounds nominated in the document, which are confined to the matter of sentence, read as follows:

“(a)His Honour Justice Helman erred in not allowing a reopening of sentence on 30 October 2006 under an application made under s 188 of the Penalties and Sentences Act 1992 (Qld);
(b)His Honour Justice Helman erred in not removing the declaration of a serious violent offender.”

On the same day, the applicant filed an application for leave to call witnesses, and for the issue of subpoenas.

The present application concerns sentences imposed on the applicant on 1 November 2001. He applied for leave to appeal against sentence. On 22 March 2002, the Court of Appeal refused his applications. On 12 November 2004, the applicant applied to the High Court of Australia for special leave to appeal, which was refused.

Then on 5 October 2006, the applicant filed an application for the reopening of the sentences imposed on 1 November 2001, under s 188(1)(c) of the Penalties and Sentences Act 1992 (Qld). Referring to R v Cassar;ex parte Attorney-General [2001] QCA 300, the learned primary Judge refused the application, because it contemplated “a rehearing of the merits of (the) sentence”. It was…

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 56
Case: [2007] QCA 56
Decision Date: 2 March 2007

CaseChat Overview and Summary

The matter before the court was an application to reopen a sentence that had been passed on the appellant, Christensen, who had been found guilty of serious criminal offences. The appeal against the conviction was dismissed, and the appeal against the sentence was allowed in part, leading to the application to reopen the sentence. The court was required to determine whether there was a right of appeal against the refusal of the application to reopen the sentence.

The legal issue before the court was whether there was a right of appeal from a decision of a single judge to refuse an application to reopen a sentence. The court held that there was no right of appeal from such a decision. The court relied on previous cases to support its decision, which established that there was no right of appeal from a decision to refuse an application to reopen a sentence, unless the decision was based on an error of law. The court found that the decision in this case was not based on an error of law.

As a result of the court's decision, the applications were dismissed. The court held that there was no right of appeal from a decision of a single judge to refuse an application to reopen a sentence, and that the decision in this case was not based on an error of law. Therefore, the applications were dismissed, and the appellant's sentence remained as previously determined by the court.

Orders

Orders of the court

Applications dismissed

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 56
PARTIES:	R v CHRISTENSEN, Kim Soborg (applicant)
FILE NO/S:	CA No 304 of 2006 SC No 398 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application Miscellaneous Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	2 March 2007
DELIVERED AT:	Brisbane
HEARING DATE:	13 February 2007
JUDGES:	de Jersey CJ, Jerrard JA and Holmes JA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Applications dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – MISCELLANEOUS POWERS OF COURTS AND JUDGES – where there was an application to re-open sentence – where the application was refused – whether there was a right of appeal Grierson v The King (1938) 60 CLR 431, applied Mickelberg v The Queen (1988) 167 CLR 259, applied R v Cassar; ex parte Attorney-General[2001] QCA 300, Appeal No 95 of 2001, 31 July 2001, cited R v Corrigan[2001] QCA 401, Appeal No 205 of 2001, 24 September 2001, applied R v MAM[2005] QCA 323, Appeal No 118 of 2005, 30 August 2005, applied R v Marriner[2006] QCA 32, Appeal No 191 of 2005, 17 February 2006, applied R v Smith (1968) QWN 50, 114, applied Crimes (Confiscation) Act 1989 (Qld), s 98 Penalties and Sentences Act 1992 (Qld), s 13A, s 188(1)(c) Police Powers and Responsibilities Act 2000 (Qld)
COUNSEL:	The applicant appeared on his own behalf D R MacKenzie for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent