R v. Fursey - [2008] QCA 324

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fursey [2008] QCA 324

PARTIES:

R
v
FURSEY, Andrew Leonard
(applicant/appellant)

FILE NO/S:

CA No 190 of 2008
DC No 1043 of 2006
DC No 3252 of 2006
DC No 3254 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

13 October 2008

JUDGES:

Keane, Holmes and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Application for leave to appeal against sentence granted.1.

Appeal allowed. 2.

Vary the sentence imposed in the District Court to the extent that it relates to the Commonwealth offences in indictment 3252 of 2006 by ordering that the applicant be sentenced to six months imprisonment and direct by order that the applicant be released on 23 October 2008 after having served the period of imprisonment between 4 July and 23 October 2008 upon the applicant giving security by recognizance in the sum of $200 conditioned that the applicant be of good behaviour for a period of five years. 3.

Record that the Court accepts the undertaking of the applicant’s counsel that he will give to the applicant the explanation required by s 16F(2) of the Crimes Act 1914 (Cth). 4.

Further vary the sentence to the extent that it relates to the State offences in indictments 1043 of 2006 and 3254 of 2006 by setting aside the parole release date of 21 December 2008 fixed in the District Court and instead fixing a parole release date of 23 October 2008. 5.

Further vary the sentence by ordering that each of the federal sentences and the state sentences are to be served concurrently with each other and with the sentence imposed in the Brisbane Magistrates Court on 23 April 2008 as varied in the District Court on 29 September 2008. 6.

Otherwise confirm the sentences imposed in the District Court.7.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where the applicant was sentenced to imprisonment for breaches of probation and community service orders on 4 July 2008 – where the imprisonment and parole release dates were fixed in light of other orders for imprisonment made on 23 April 2008 – where the orders for imprisonment made on 23 April 2008 were substantially reduced on appeal to the District Court on 29 September 2008 – where the orders made on appeal to the District Court increased the custodial period intended by the judge who passed sentence on 4 July 2008 – where the applicant contended that the intention of the judge who imposed sentence on 4 July 2008 had been distorted by the effect of the subsequent appeal to the District Court – whether it was necessary to vary the orders…

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. Fursey

Details

AGLC: R v Fursey [2008] QCA 324
Case: [2008] QCA 324
Decision Date: 17 October 2008

CaseChat Overview and Summary

The case of R v. Fursey involved an appeal against a sentence that had been imposed by the District Court of New South Wales. Fursey, the convicted person, had been sentenced to imprisonment for breaches of probation and community service orders. The sentence was fixed in consideration of other imprisonment orders made earlier. The appeal centred on whether the original sentence should be altered given that subsequent imprisonment orders had been significantly reduced by the District Court. Fursey argued that the original sentence had been unfairly extended due to the District Court's appeal, and thus, the original sentence should be corrected to reflect the initial intention of the sentencing judge.

The primary legal issue before the court was whether it was necessary to adjust the original sentence in light of the subsequent appeal to the District Court. Specifically, the court needed to determine if there had been a distortion in the original sentencing intention due to the reduced sentences on appeal, and if so, whether this warranted a correction of the original sentence. The court also had to consider the extent to which the original sentence should be altered to reflect the new circumstances created by the District Court's appeal.

In its judgment, the court concluded that the original sentence should indeed be varied to correct any perceived injustice caused by the reduced sentences on appeal. The court found that the original intention of the sentencing judge had been to impose a specific custodial period, which had been inadvertently extended by the subsequent appeal. To rectify this, the court ordered that Fursey's sentence be reduced to six months imprisonment, with a release date that aligned with the original intent. The court also directed that all sentences, both federal and state, be served concurrently, thereby ensuring that Fursey's overall custodial period was not increased. The court accepted the undertaking of Fursey's counsel to explain the court's decision to Fursey as required by law.

In summary, the appeal was allowed, and the court varied the original sentence to better align with the original sentencing intention. Fursey was ordered to serve six months imprisonment, with a release date set for 23 October 2008, and all sentences were to be served concurrently. The court's decision aimed to correct any perceived injustice while maintaining the integrity of the original sentencing process.

Orders

Orders of the court

Application for leave to appeal against sentence granted.1.

Appeal allowed. 2.

Vary the sentence imposed in the District Court to the extent that it relates to the Commonwealth offences in indictment 3252 of 2006 by ordering that the applicant be sentenced to six months imprisonment and direct by order that the applicant be released on 23 October 2008 after having served the period of imprisonment between 4 July and 23 October 2008 upon the applicant giving security by recognizance in the sum of $200 conditioned that the applicant be of good behaviour for a period of five years. 3.

Record that the Court accepts the undertaking of the applicant’s counsel that he will give to the applicant the explanation required by s 16F(2) of the Crimes Act 1914 (Cth). 4.

Further vary the sentence to the extent that it relates to the State offences in indictments 1043 of 2006 and 3254 of 2006 by setting aside the parole release date of 21 December 2008 fixed in the District Court and instead fixing a parole release date of 23 October 2008. 5.

Further vary the sentence by ordering that each of the federal sentences and the state sentences are to be served concurrently with each other and with the sentence imposed in the Brisbane Magistrates Court on 23 April 2008 as varied in the District Court on 29 September 2008. 6.

Otherwise confirm the sentences imposed in the District Court.7.

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 Fursey [2008] QCA 324
PARTIES:	R v FURSEY, Andrew Leonard (applicant/appellant)
FILE NO/S:	CA No 190 of 2008 DC No 1043 of 2006 DC No 3252 of 2006 DC No 3254 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	17 October 2008
DELIVERED AT:	Brisbane
HEARING DATE:	13 October 2008
JUDGES:	Keane, Holmes and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Application for leave to appeal against sentence granted.1. Appeal allowed. 2. Vary the sentence imposed in the District Court to the extent that it relates to the Commonwealth offences in indictment 3252 of 2006 by ordering that the applicant be sentenced to six months imprisonment and direct by order that the applicant be released on 23 October 2008 after having served the period of imprisonment between 4 July and 23 October 2008 upon the applicant giving security by recognizance in the sum of $200 conditioned that the applicant be of good behaviour for a period of five years. 3. *Record that the Court accepts the undertaking of the applicant’s counsel that he will give to the applicant the explanation required by s 16F(2) of the Crimes Act* 1914 (Cth). 4. Further vary the sentence to the extent that it relates to the State offences in indictments 1043 of 2006 and 3254 of 2006 by setting aside the parole release date of 21 December 2008 fixed in the District Court and instead fixing a parole release date of 23 October 2008. 5. Further vary the sentence by ordering that each of the federal sentences and the state sentences are to be served concurrently with each other and with the sentence imposed in the Brisbane Magistrates Court on 23 April 2008 as varied in the District Court on 29 September 2008. 6. Otherwise confirm the sentences imposed in the District Court.**7.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where the applicant was sentenced to imprisonment for breaches of probation and community service orders on 4 July 2008 – where the imprisonment and parole release dates were fixed in light of other orders for imprisonment made on 23 April 2008 – where the orders for imprisonment made on 23 April 2008 were substantially reduced on appeal to the District Court on 29 September 2008 – where the orders made on appeal to the District Court increased the custodial period intended by the judge who passed sentence on 4 July 2008 – where the applicant contended that the intention of the judge who imposed sentence on 4 July 2008 had been distorted by the effect of the subsequent appeal to the District Court – whether it was necessary to vary the orders…