R v Fisher - [2013] QCA 311

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fisher [2013] QCA 311

PARTIES:

R
v
FISHER, Jason Ian
(applicant)

FILE NO/S:

CA No 98 of 2013
DC No 1952 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

18 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

24 September 2013

JUDGES:

Fraser and Gotterson JJA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Leave to appeal against sentence granted.1.

Appeal against sentence allowed.2.

a.     Vary the order that the sentences be served cumulatively upon the sentence presently being served, to an order that the sentences be served cumulatively upon the sentence imposed on the applicant on 24 October 2012.3.

b.     Vary the parole eligibility date, set at 10 May 2014, to 26 April 2014.

c.      Declare that the time the applicant was held in pre-sentence custody, between 18 April 2012 and 1 May 2012, a period of 14 days, is taken to be imprisonment already served under the sentences.

4. The orders imposed by the sentencing judge are otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty in the District Court to six counts of receiving tainted property, one count of unlawful use of a motor vehicle to facilitate the commission of an offence, one count of fraud and one count of burglary and stealing – where the applicant was sentenced to two years imprisonment for the charge of burglary and stealing, one month imprisonment for the charge of fraud and 12 months imprisonment for each of the remaining charges – where the sentences were to be served concurrently with each other but cumulatively on another sentence the applicant was already serving – where the learned sentencing judge set the applicant’s parole eligibility date after the expiry of one third of the cumulative head sentence – where the applicant applies for leave to appeal the sentence on the ground it was manifestly excessive due to errors relating to pre-sentence custody – whether the sentence imposed was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 159A

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited
R v Bryant (2007) 173 A Crim R 88; [2007] QCA 247, considered
R v Heath & Anor [1995] QCA 170, considered
R v Howie [2009] QCA 50, considered
R v Watson [2009] QCA 243, considered

COUNSEL:

The applicant appeared on his own behalf
A W Moynihan QC for the respondent

SOLICITORS:

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

FRASER JA: I agree with the reasons for judgment of Henry J and the orders proposed by his Honour.

GOTTERSON JA: I agree with the orders proposed by Henry J and with the reasons given by his Honour.

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 Fisher

Details

AGLC: R v Fisher [2013] QCA 311
Case: [2013] QCA 311
Decision Date: 18 October 2013

CaseChat Overview and Summary

In the case of R v Fisher, the applicant, Fisher, had pleaded guilty in the District Court to a series of criminal offences. These included six counts of receiving tainted property, one count of unlawful use of a motor vehicle to facilitate the commission of an offence, one count of fraud, and one count of burglary and stealing. The District Court imposed a sentence of two years imprisonment for the charge of burglary and stealing, one month imprisonment for the charge of fraud, and 12 months imprisonment for each of the remaining charges. The sentences were ordered to be served concurrently with each other but cumulatively on another sentence Fisher was already serving. The sentencing judge also set Fisher’s parole eligibility date after the expiry of one third of the cumulative head sentence. Fisher sought leave to appeal against the sentence, arguing it was manifestly excessive due to errors relating to pre-sentence custody.

The primary legal issue before the court was whether the sentence imposed by the District Court was manifestly excessive. Fisher argued that the sentence was manifestly excessive due to errors relating to the pre-sentence custody time, which should have been taken into account. The court needed to determine whether the District Court had properly considered the relevant sentencing principles and whether the sentence was, in fact, manifestly excessive. This involved reviewing the totality of the sentence, including the impact of the pre-sentence custody on the overall punishment.

In considering the appeal, the court examined the totality of the sentence, including the pre-sentence custody period. The court found that the District Court had made errors in calculating the pre-sentence custody time, which should have been considered as part of the overall sentence. The court also found that the sentence was, indeed, manifestly excessive due to these errors. As a result, the court granted leave to appeal against the sentence and allowed the appeal. The court varied the order to specify that the sentences be served cumulatively upon the sentence imposed on 24 October 2012, rather than another unspecified sentence. The parole eligibility date was also adjusted to 26 April 2014, and the time Fisher spent in pre-sentence custody was recognised as time already served under the sentences. The rest of the orders imposed by the sentencing judge were confirmed.

The final orders of the court were that leave to appeal against the sentence was granted, the appeal against the sentence was allowed, and the order regarding the cumulative sentences was varied. The parole eligibility date was also altered, and the pre-sentence custody period was recognised as time already served. The rest of the orders by the sentencing judge were confirmed, ensuring the sentence was appropriately adjusted to reflect the correct legal considerations.

Orders

Orders of the court

Leave to appeal against sentence granted.1.

Appeal against sentence allowed.2.

a. Vary the order that the sentences be served cumulatively upon the sentence presently being served, to an order that the sentences be served cumulatively upon the sentence imposed on the applicant on 24 October 2012.3.

b. Vary the parole eligibility date, set at 10 May 2014, to 26 April 2014.

c. Declare that the time the applicant was held in pre-sentence custody, between 18 April 2012 and 1 May 2012, a period of 14 days, is taken to be imprisonment already served under the sentences.

4. The orders imposed by the sentencing judge are otherwise confirmed.

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 Fisher [2013] QCA 311
PARTIES:	R v FISHER, Jason Ian (applicant)
FILE NO/S:	CA No 98 of 2013 DC No 1952 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	18 October 2013
DELIVERED AT:	Brisbane
HEARING DATE:	24 September 2013
JUDGES:	Fraser and Gotterson JJA and Henry J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Leave to appeal against sentence granted.1. Appeal against sentence allowed.2. a. Vary the order that the sentences be served cumulatively upon the sentence presently being served, to an order that the sentences be served cumulatively upon the sentence imposed on the applicant on 24 October 2012.3. b. Vary the parole eligibility date, set at 10 May 2014, to 26 April 2014. c. Declare that the time the applicant was held in pre-sentence custody, between 18 April 2012 and 1 May 2012, a period of 14 days, is taken to be imprisonment already served under the sentences. 4. The orders imposed by the sentencing judge are otherwise confirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty in the District Court to six counts of receiving tainted property, one count of unlawful use of a motor vehicle to facilitate the commission of an offence, one count of fraud and one count of burglary and stealing – where the applicant was sentenced to two years imprisonment for the charge of burglary and stealing, one month imprisonment for the charge of fraud and 12 months imprisonment for each of the remaining charges – where the sentences were to be served concurrently with each other but cumulatively on another sentence the applicant was already serving – where the learned sentencing judge set the applicant’s parole eligibility date after the expiry of one third of the cumulative head sentence – where the applicant applies for leave to appeal the sentence on the ground it was manifestly excessive due to errors relating to pre-sentence custody – whether the sentence imposed was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 159A Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited R v Bryant (2007) 173 A Crim R 88; [2007] QCA 247, considered R v Heath & Anor [1995] QCA 170, considered R v Howie [2009] QCA 50, considered R v Watson [2009] QCA 243, considered
COUNSEL:	The applicant appeared on his own behalf A W Moynihan QC for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent