R v. Cromwell - [2008] QCA 191

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cromwell [2008] QCA 191

PARTIES:

R
v
CROMWELL, Matthew
(applicant)

FILE NO/S:

CA No 57 of 2008
SC No 101 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

18 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

9 July 2008

JUDGES:

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

ORDER:

Application for extension refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where an application to appeal against sentence was filed more than 10 months after the applicant was convicted and sentenced – where the applicant has given no satisfactory explanation for the delay – whether the interests of justice nonetheless warrant the grant of an extension of time within which to appeal against the sentence imposed

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERAL PRINCIPLES – where the applicant was convicted on his own plea of various drug-related offences including the unlawful production of the dangerous drug methylamphetamine – where the applicant was sentenced to an effective seven years imprisonment – whether the sentencing judge had improper regard to evidence of criminal conduct beyond that relating to the offences in question – whether the sentence imposed was in all the circumstances manifestly excessive

Kingswell v The Queen (1985) 159 CLR 264; [1985] HCA 72, cited
R v Boyd[2001] QCA 421, considered
R v D [1996] 1 Qd R 363; [1995] QCA 329, considered
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31, cited
R v Nagy [2004] 1 Qd R 63, [2003] QCA 175, considered
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied

COUNSEL:

A J Kimmins for the applicant
G P Cash for the respondent

SOLICITORS:

John D Weller & Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent

JERSEY CJ: de I have had the advantage of reading the reasons for judgment of Keane JA. I agree with the order proposed by His Honour, and with his reasons.

KEANE JA: On 10 April 2007 the applicant was convicted on his own plea of one count of unlawful production of the dangerous drug methylamphetamine (speed), one count of unlawful production of the dangerous drug MDMA, and one count of the intentional importation of sassafras oil, the importation of which was prohibited under the Customs Act 1901 (Cth).

The applicant was sentenced on that date to seven years imprisonment in relation to the unlawful production of speed with a recommendation for eligibility for parole after three years. He was sentenced to shorter concurrent terms of imprisonment…

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. Cromwell

Details

AGLC: R v Cromwell [2008] QCA 191
Case: [2008] QCA 191
Decision Date: 18 July 2008

CaseChat Overview and Summary

The case before the court was an appeal against sentence, following a conviction for drug-related offences, including the unlawful production of methylamphetamine. The applicant was sentenced to an effective seven years imprisonment. The applicant applied for an extension of time to appeal the sentence, more than 10 months after the conviction and sentence were imposed. The applicant offered no satisfactory explanation for the delay in filing the application. The court was required to decide whether the interests of justice warranted granting an extension of time to appeal against the sentence.

The court considered the general principles governing the grant or refusal of an extension of time to appeal. The court emphasised that the applicant bears the onus of establishing that the delay in lodging the application was not attributable to any fault or neglect on their part. The court also noted that an extension of time will only be granted if the applicant can demonstrate that the delay did not prejudice the respondent and that the applicant has a meritorious appeal. The court found that the applicant had not provided a satisfactory explanation for the delay and had failed to demonstrate that the delay did not prejudice the respondent or that the appeal was meritorious. The court held that the interests of justice did not warrant the grant of an extension of time within which to appeal against the sentence imposed.

The court also considered whether the sentencing judge had regard to improper evidence of criminal conduct beyond that relating to the offences in question. The court held that the sentencing judge had not erred in this regard. The court further held that the sentence imposed was not manifestly excessive in all the circumstances.

The court refused the application for an extension of time to appeal against sentence.

Orders

Orders of the court

Application for extension refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Cromwell [2008] QCA 191
PARTIES:	R v CROMWELL, Matthew (applicant)
FILE NO/S:	CA No 57 of 2008 SC No 101 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	18 July 2008
DELIVERED AT:	Brisbane
HEARING DATE:	9 July 2008
JUDGES:	de Jersey CJ, Keane JA and Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for extension refused
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where an application to appeal against sentence was filed more than 10 months after the applicant was convicted and sentenced – where the applicant has given no satisfactory explanation for the delay – whether the interests of justice nonetheless warrant the grant of an extension of time within which to appeal against the sentence imposed CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERAL PRINCIPLES – where the applicant was convicted on his own plea of various drug-related offences including the unlawful production of the dangerous drug methylamphetamine – where the applicant was sentenced to an effective seven years imprisonment – whether the sentencing judge had improper regard to evidence of criminal conduct beyond that relating to the offences in question – whether the sentence imposed was in all the circumstances manifestly excessive Kingswell v The Queen (1985) 159 CLR 264; [1985] HCA 72, cited R v Boyd[2001] QCA 421, considered R v D [1996] 1 Qd R 363; [1995] QCA 329, considered The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31, cited R v Nagy [2004] 1 Qd R 63, [2003] QCA 175, considered R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied
COUNSEL:	A J Kimmins for the applicant G P Cash for the respondent
SOLICITORS:	John D Weller & Associates for the applicant Director of Public Prosecutions (Queensland) for the respondent