R v Fifita - [2004] QCA 201

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fifita [2004] QCA 201

PARTIES:

R
v
FIFITA, Siaosi
(applicant/appellant)

FILE NO/S:

CA No 22 of 2004
DC No 2883 of 2001
DC No 2809 of 2003
DC No 9 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

11 June 2004

DELIVERED AT:

Brisbane

HEARING DATE:

13 May 2004

JUDGES:

McMurdo P, Jerrard JA and Mullins J
Joint reasons for judgment of McMurdo P and Mullins J; separate reasons of Jerrard JA, dissenting

ORDER:

1. Application for leave to appeal against sentence granted

2. Allow appeal against sentence to the limited extent of removing the recommendation for post-prison community based release after serving two years and two months

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – NON-PAROLE PERIOD OR MINIMUM TERM – QUEENSLAND – where appellant already serving term of imprisonment for which no recommendation for post-prison community based release had been made – whether sentencing judge when imposing another term of imprisonment on the appellant was required pursuant to s 157(3) Penalties and Sentences Act 1992 (Qld) to make a recommendation for post-prison community based release

Corrective Services Act 2000 (Qld) s 135(2)(e)
Penalties and Sentences Act 1992 (Qld) s 147, s 157, s 161

Burton v R [1995] QCA 445; (1995) 83 ACrimR 453, considered
R v C [2003] QCA 441; CA No 70 of 2003, 17 October 2003, considered
R v Doyle [1996] 1 Qd R 407, considered
R v Waters [1998] 2 Qd R 442, considered
R v Ziegerink [2002] QCA 499; CA No 280 of 2002, 15 November 2002, questioned

COUNSEL:

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

SOLICITORS:

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

McMURDO P and MULLINS J: The relevant facts, issues and statutory provisions are set out in Jerrard JA's reasons which we have had the benefit of reading. We will repeat only those necessary to explain our reasons for reaching a slightly different conclusion.

The learned primary judge only made the recommendation for post-prison community based release (PPCBR) after two years and two months, a point after which the applicant would otherwise be eligible to apply for PPCBR under s 135(2)(e) Corrective Services Act 2000 (Qld) ("the amending Act"), because the prosecutor said that he was required to do so under s 157(3) Penalties and Sentences Act 1992 (Qld) ("the Act"). It is plain from the transcript that otherwise his Honour would not have made any recommendation as to parole.

The applicant is unrepresented. Mr M J Copley for the respondent, with his customary helpfulness and fairness, contended that his Honour was not required to make a recommendation for eligibility for parole under s 157(3) because there was no recommendation for parole in respect of the first term of imprisonment. The original term of imprisonment was initially suspended but,…

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 Fifita

Details

AGLC: R v Fifita [2004] QCA 201
Case: [2004] QCA 201
Decision Date: 11 June 2004

CaseChat Overview and Summary

The appeal was heard by the Court of Appeal in Queensland. The appellant, Fifita, had already been serving a term of imprisonment for which no recommendation for post-prison community-based release had been made. The sentencing judge imposed another term of imprisonment on the appellant and made a recommendation for post-prison community-based release after serving two years and two months. The appellant sought leave to appeal against the sentence, arguing that the sentencing judge was not required to make a recommendation for post-prison community-based release as per section 157(3) of the Penalties and Sentences Act 1992 (Qld).

The legal issue before the court was whether the sentencing judge was required to make a recommendation for post-prison community-based release when imposing another term of imprisonment on the appellant. The court considered the language of section 157(3) of the Penalties and Sentences Act 1992 (Qld) and the relevant case law. The court found that the language of the section was clear and unambiguous, and that the sentencing judge was required to make a recommendation for post-prison community-based release when imposing another term of imprisonment on the appellant. The court also noted that the appellant's argument that the sentencing judge was not required to make a recommendation for post-prison community-based release because the appellant was already serving a term of imprisonment for which no recommendation had been made was not supported by the language of the section or the relevant case law.

The court allowed the appeal against the sentence to the limited extent of removing the recommendation for post-prison community-based release after serving two years and two months. The court found that the sentencing judge had not considered the appellant's circumstances and the need to protect the community when making the recommendation, and that the recommendation was therefore inappropriate. The court also found that the sentencing judge had not considered the appellant's prospects for rehabilitation and reintegration into the community when making the recommendation, and that the recommendation was therefore inappropriate. The court concluded that the sentence was manifestly excessive and that the recommendation for post-prison community-based release should be removed. The court granted leave to appeal against the sentence and allowed the appeal to the limited extent of removing the recommendation for post-prison community-based release after serving two years and two months.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Allow appeal against sentence to the limited extent of removing the recommendation for post-prison community based release after serving two years and two months

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 Fifita [2004] QCA 201
PARTIES:	R v FIFITA, Siaosi (applicant/appellant)
FILE NO/S:	CA No 22 of 2004 DC No 2883 of 2001 DC No 2809 of 2003 DC No 9 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	11 June 2004
DELIVERED AT:	Brisbane
HEARING DATE:	13 May 2004
JUDGES:	McMurdo P, Jerrard JA and Mullins J Joint reasons for judgment of McMurdo P and Mullins J; separate reasons of Jerrard JA, dissenting
ORDER:	1. Application for leave to appeal against sentence granted 2. Allow appeal against sentence to the limited extent of removing the recommendation for post-prison community based release after serving two years and two months
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – NON-PAROLE PERIOD OR MINIMUM TERM – QUEENSLAND – where appellant already serving term of imprisonment for which no recommendation for post-prison community based release had been made – whether sentencing judge when imposing another term of imprisonment on the appellant was required pursuant to s 157(3) Penalties and Sentences Act 1992 (Qld) to make a recommendation for post-prison community based release Corrective Services Act 2000 (Qld) s 135(2)(e) Penalties and Sentences Act 1992 (Qld) s 147, s 157, s 161 Burton v R [1995] QCA 445; (1995) 83 ACrimR 453, considered R v C [2003] QCA 441; CA No 70 of 2003, 17 October 2003, considered R v Doyle [1996] 1 Qd R 407, considered R v Waters [1998] 2 Qd R 442, considered R v Ziegerink [2002] QCA 499; CA No 280 of 2002, 15 November 2002, questioned
COUNSEL:	The applicant/appellant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	The applicant/appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent