R v Enright - [2002] QCA 490

SUPREME COURT OF QUEENSLAND

CITATION:

R v Enright [2002] QCA 490

PARTIES:

R
v
ENRIGHT, Tim
(applicant)

FILE NO/S:

CA No 258 of 2002
DC No 1932 of 2000
DC No 1302 of 2000
DC No 3111 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EXTEMPORE ON:

12 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

12 November 2002

JUDGES:

de Jersey CJ, Williams JA, Mullins J
Separate reasons for judgment of each member of the court, each concurring as to the order made

ORDER:

Application for extension of time refused

CATCHWORDS:

CRIMINAL LAW – PAROBATION, PAROLE RELAESE ON LICENCE AND REMISSIONS – where applicant convicted and sentenced to 4 years 6 months for trafficking heroin with recommendation to be considered for parole after 12 months – where applicant released on parole and re-offended – parole suspended and cancelled once taken into custody – pleaded guilty and sentenced for re-offending behaviour of dangerous operation of a motor vehicle (6 months) cumulative upon sentence for trafficking and sentenced for driving under the influence (21 days), and two counts of fraud (2 years and 18 months) to be served concurrently amongst themselves, but cumulatively upon expiration of sentence of 6 months for dangerous operation of motor vehicle – recommendation to be considered for parole after serving 6 month term – applicant had mistaken belief that period whilst on parole counted towards sentence of trafficking – s207B Corrective Services Act 1988 (Qld) extinguished eligibility of applicant for remission sentence for trafficking – no mistake about the effect of then provisions made on sentencing for re-offending – lack of eligibility for remission of cumulative sentences caused by introduction of Corrective Services Act 2000 (Qld) – did not affect correctness of sentencing for re-offending – no prospects of success on appeal – application for extension of time refused

Corrective Services Act 1988 (Qld), s 190(1), s 207B
Corrective Services Act 2000 (Qld), s 75(1)(c)

R v McMahon [2002] QCA 18; CA No 233 of 2001, 6 February 2002, followed

COUNSEL:

The applicant appeared on his own behalf
DL Meredith for the respondent

SOLICITORS:

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

THE CHIEF JUSTICE: I will invite Justice Mullins to deliver the first judgment.

MULLINS J: The applicant applies for an extension of the time within which to apply for leave to appeal against the sentences imposed on him on 26 February 2001 in the District Court.

The applicant was convicted of trafficking heroin and was sentenced on 6 March 1997 to imprisonment for four years six months, with a recommendation that he be considered for parole after serving 12 months. He was released on parole on
27 April 1998.

The offences for which he was sentenced on 26 February 2001, were committed whilst he was on parole. The applicant's parole was suspended by the Queensland Community Corrections' Board on 8 May 2000. He was returned to custody…

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 Enright

Details

AGLC: R v Enright [2002] QCA 490
Case: [2002] QCA 490
Decision Date: 12 November 2002

CaseChat Overview and Summary

The case of R v Enright involved the applicant who had been convicted and sentenced to 4 years and 6 months for trafficking heroin, with a recommendation for parole consideration after 12 months. After being released on parole, the applicant re-offended, leading to the suspension and cancellation of parole. The applicant subsequently pleaded guilty to dangerous operation of a motor vehicle, driving under the influence, and two counts of fraud, receiving concurrent sentences for the latter two, and cumulative sentences for the dangerous operation of a motor vehicle. The court was tasked with determining the eligibility for remission of the applicant’s sentences, particularly in light of the changes introduced by the Corrective Services Act 2000 (Qld).

The primary legal issue was whether the applicant, who had a mistaken belief that his time on parole counted towards his trafficking sentence, could be eligible for remission under the Corrective Services Act. The court considered whether the provisions of the Act extinguished the applicant's eligibility for remission of his trafficking sentence and if the lack of eligibility for remission of the cumulative sentences was valid under the new Act. The applicant argued that there was a lack of clarity about the effect of the provisions on sentencing for re-offending.

The court reasoned that the Corrective Services Act 1988 (Qld) indeed extinguished the applicant's eligibility for remission for the trafficking sentence. However, the applicant had no such misunderstanding about the impact of the new provisions on the sentencing for re-offending. The court held that the introduction of the Corrective Services Act 2000 (Qld) did not affect the correctness of the sentencing for re-offending. The applicant had no prospects of success on appeal, and therefore, the application for extension of time was refused. The court maintained the original sentencing, affirming that the applicant's lack of eligibility for remission did not undermine the validity of the sentences imposed for the re-offending behaviour.

Orders

Orders of the court

Application for extension of time 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 Enright [2002] QCA 490
PARTIES:	R v ENRIGHT, Tim (applicant)
FILE NO/S:	CA No 258 of 2002 DC No 1932 of 2000 DC No 1302 of 2000 DC No 3111 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EXTEMPORE ON:	12 November 2002
DELIVERED AT:	Brisbane
HEARING DATE:	12 November 2002
JUDGES:	de Jersey CJ, Williams JA, Mullins J Separate reasons for judgment of each member of the court, each concurring as to the order made
ORDER:	Application for extension of time refused
CATCHWORDS:	CRIMINAL LAW – PAROBATION, PAROLE RELAESE ON LICENCE AND REMISSIONS – where applicant convicted and sentenced to 4 years 6 months for trafficking heroin with recommendation to be considered for parole after 12 months – where applicant released on parole and re-offended – parole suspended and cancelled once taken into custody – pleaded guilty and sentenced for re-offending behaviour of dangerous operation of a motor vehicle (6 months) cumulative upon sentence for trafficking and sentenced for driving under the influence (21 days), and two counts of fraud (2 years and 18 months) to be served concurrently amongst themselves, but cumulatively upon expiration of sentence of 6 months for dangerous operation of motor vehicle – recommendation to be considered for parole after serving 6 month term – applicant had mistaken belief that period whilst on parole counted towards sentence of trafficking – s207B Corrective Services Act 1988 (Qld) extinguished eligibility of applicant for remission sentence for trafficking – no mistake about the effect of then provisions made on sentencing for re-offending – lack of eligibility for remission of cumulative sentences caused by introduction of Corrective Services Act 2000 (Qld) – did not affect correctness of sentencing for re-offending – no prospects of success on appeal – application for extension of time refused Corrective Services Act 1988 (Qld), s 190(1), s 207B Corrective Services Act 2000 (Qld), s 75(1)(c) R v McMahon [2002] QCA 18; CA No 233 of 2001, 6 February 2002, followed
COUNSEL:	The applicant appeared on his own behalf DL Meredith for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent