R v Gardiner - [2004] QCA 117

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gardiner [2004] QCA 117

PARTIES:

R
v
GARDINER, Wayne Robert
(applicant)

FILE NO/S:

CA No 1 of 2004
DC No 802 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

21 April 2004

DELIVERED AT:

Brisbane

HEARING DATE:

21 April 2004

JUDGES:

McMurdo P, McPherson and Williams JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal refused

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE – DATE OF COMMENCEMENT – where applicant seeking leave to appeal against decision of learned sentencing judge not to reopen his sentence proceedings under s 188 of the Penalties and Sentences Act – where applicant on parole when committed further offence for which this sentence was imposed – where learned sentencing judge given incorrect date for completion of balance of sentence for first offence – whether sentence imposed based on a clear factual error of substance – whether any wrongful exercise of discretion in the refusal to reopen

Penalties and Sentences Act 1992 (Qld), s 188

COUNSEL:

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

SOLICITORS:

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

THE PRESIDENT: The applicant was convicted on 29 July 1998 of raping a 13 year old girl on 15 October 1997. He was sentenced to six years imprisonment cumulative upon any other sentences that he was liable to serve. He had been sentenced in 1995 to three years imprisonment for dangerous driving causing death and was on parole when he committed the offence of rape. Upon his conviction of rape his parole was revoked and he was required to serve the balance of that sentence. He appealed to this Court against his conviction but that appeal was dismissed. See R v Gardiner [1998] QCA 353; CA No 266 of 1998, 6 November 1998.

It is common ground that at his sentence for rape the Judge was wrongly informed that the applicant would complete serving his original sentence on 20 October 1998. The learned sentencing Judge stated at page 5 of her sentencing reasons:

"I sentence you on the basis, as both counsels have advised me, that that will mean the sentence imposed in 1995 will not be fulfilled until 19 or 20 October 1998."

Later in her sentencing reasons at page 6, she added:

"You must be imprisoned for this crime, but I am concerned your mother is obviously not young and the children will need you, and that is why I have decided, in view of the cumulative sentence that I must impose, that a sentence of six years at the very lowest end of the range, which is appropriate, is…

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 Gardiner

Details

AGLC: R v Gardiner [2004] QCA 117
Case: [2004] QCA 117
Decision Date: 21 April 2004

CaseChat Overview and Summary

In the matter of the Crown versus Gardiner, the applicant sought leave to appeal against the decision of the learned sentencing judge not to reopen his sentence proceedings under section 188 of the Penalties and Sentences Act. The applicant, who was on parole when he committed a further offence for which a sentence was imposed, challenged the sentencing judge's decision, arguing that the sentence was based on a clear factual error of substance. The error related to the sentencing judge being given the incorrect date for the completion of the balance of the sentence for the first offence.

The central legal issues in this case were whether the sentence imposed was based on a clear factual error of substance and whether there was any wrongful exercise of discretion in the refusal to reopen the sentence proceedings. The applicant argued that the sentencing judge had incorrectly calculated the date for the completion of the balance of the sentence for the first offence, which affected the overall sentence imposed. The court was required to determine whether these errors warranted a reopening of the sentence proceedings and, if so, whether the sentencing judge had exercised their discretion wrongfully in refusing to do so.

The court held that the sentencing judge had not made a clear factual error of substance, as the incorrect date provided to the judge did not alter the overall sentence imposed. The court found that the sentencing judge's decision not to reopen the sentence proceedings was not a wrongful exercise of discretion. The court concluded that the applicant's challenge to the sentence was not founded on a clear factual error of substance and that the sentencing judge had correctly exercised their discretion in refusing to reopen the sentence proceedings.

The final orders of the court were to refuse the applicant's application for leave to appeal against the decision of the learned sentencing judge not to reopen the sentence proceedings under section 188 of the Penalties and Sentences Act.

Orders

Orders of the court

Application for leave to appeal 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 Gardiner [2004] QCA 117
PARTIES:	R v GARDINER, Wayne Robert (applicant)
FILE NO/S:	CA No 1 of 2004 DC No 802 of 1998
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	21 April 2004
DELIVERED AT:	Brisbane
HEARING DATE:	21 April 2004
JUDGES:	McMurdo P, McPherson and Williams JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal refused
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE – DATE OF COMMENCEMENT – where applicant seeking leave to appeal against decision of learned sentencing judge not to reopen his sentence proceedings under s 188 of the Penalties and Sentences Act – where applicant on parole when committed further offence for which this sentence was imposed – where learned sentencing judge given incorrect date for completion of balance of sentence for first offence – whether sentence imposed based on a clear factual error of substance – whether any wrongful exercise of discretion in the refusal to reopen Penalties and Sentences Act 1992 (Qld), s 188
COUNSEL:	The applicant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Qld) for the respondent