R v Fursey (No 2) - [2008] QCA 329

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fursey (No 2) [2008] QCA 329

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
DC No 1807 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application – Delivery of Further Orders

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

13 October 2008

JUDGES:

Keane, Holmes and Fraser JJA
Judgment of the Court

ORDERS:

Set aside order number 5 made by this Court on 17 October 2008 and instead order:1.

Further vary the sentence to the extent that it relates to the State offences in indictments 1043 of 2006 and 3254 of 2006 and vary the orders in District Court file number 1807 of 2008 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 2008a.

Otherwise confirm the orders made by this Court on 17 October 20082.

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDER – AMENDING, VARYING AND SETTING ASIDE – INHERENT POWER TO AMEND TO GIVE EFFECT TO MEANING AND INTENTION OF COURT – where Court allowed an appeal against sentence – where Court did not make an order setting aside a parole release date fixed for a breach of a suspended sentence – where the orders did not reflect the intention of the Court – whether the orders should be varied to reflect the intention of the Court

COUNSEL:

C J Cassidy for the applicant/appellant
M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: On 13 October 2008 this Court heard an application for leave to appeal against sentence. On 17 October 2008 the Court granted the application and allowed the appeal and made the following orders:

“1. Application for leave to appeal against sentence granted.
2. Appeal allowed.
3. 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.
4. 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).
5. 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…

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.

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Details

Case: [2008] QCA 329
Decision Date: 22 October 2008

CaseChat Overview and Summary

The case of R v Fursey (No 2) involves the defendant Fursey, who appealed against his sentence. The legal issues before the Court were whether the orders made should be varied to reflect the intention of the Court, particularly in relation to the setting aside of a parole release date fixed for a breach of a suspended sentence. The Court was required to determine if the inherent power to amend judgments and orders should be exercised to give effect to the meaning and intention of the Court.

The Court found that the orders made did not accurately reflect the intention of the Court, particularly in relation to the parole release date. The Court exercised its inherent power to amend the orders to ensure they aligned with the intended outcome. The Court set aside the previous order that had fixed a parole release date and instead fixed a new parole release date that better reflected the Court’s intention.

In its decision, the Court emphasised the importance of ensuring that the orders made by the Court accurately reflect its intention, especially in cases involving sentencing and parole. The Court allowed the appeal against sentence and varied the orders to reflect its intention, setting aside the previous parole release date and fixing a new date. The Court confirmed the other orders made on 17 October 2008, except for the aspect related to the parole release date. The final orders included setting aside the previous parole release date and fixing a new parole release date of 23 October 2008.

Orders

Orders of the court

Set aside order number 5 made by this Court on 17 October 2008 and instead order:1.

Further vary the sentence to the extent that it relates to the State offences in indictments 1043 of 2006 and 3254 of 2006 and vary the orders in District Court file number 1807 of 2008 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 2008a.

Otherwise confirm the orders made by this Court on 17 October 20082.

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 Fursey (No 2) [2008] QCA 329
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 DC No 1807 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application – Delivery of Further Orders
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	22 October 2008
DELIVERED AT:	Brisbane
HEARING DATE:	13 October 2008
JUDGES:	Keane, Holmes and Fraser JJA Judgment of the Court
ORDERS:	Set aside order number 5 made by this Court on 17 October 2008 and instead order:1. Further vary the sentence to the extent that it relates to the State offences in indictments 1043 of 2006 and 3254 of 2006 and vary the orders in District Court file number 1807 of 2008 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 2008a. Otherwise confirm the orders made by this Court on 17 October 20082.
CATCHWORDS:	PROCEDURE – JUDGMENTS AND ORDER – AMENDING, VARYING AND SETTING ASIDE – INHERENT POWER TO AMEND TO GIVE EFFECT TO MEANING AND INTENTION OF COURT – where Court allowed an appeal against sentence – where Court did not make an order setting aside a parole release date fixed for a breach of a suspended sentence – where the orders did not reflect the intention of the Court – whether the orders should be varied to reflect the intention of the Court
COUNSEL:	C J Cassidy for the applicant/appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent