R v George - [2013] QCA 302

SUPREME COURT OF QUEENSLAND

CITATION:

R v George [2013] QCA 302

PARTIES:

R
v
GEORGE, Farlane
(applicant)

FILE NO/S:

CA No 191 of 2013
DC No 243 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

Orders delivered ex tempore 1 October 2013
Reasons delivered 11 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

1 October 2013

JUDGES:

Margaret McMurdo P and Mullins and Henry JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 1 October 2013:

1. Application for extension to apply for leave to appeal granted and time extended to 6 August 2013.

2.   Application for leave to appeal granted.

3.   Appeal allowed.

4.   The sentences imposed below are set aside.

5.   Instead, it is ordered that:

a.     The applicant be sentenced to 3 months imprisonment for the offence of assault occasioning bodily harm.

b.     The applicant be convicted but not further punished for the offence of deprivation of liberty.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant pleaded guilty in the District Court to one count of deprivation of liberty and one count of assault occasioning bodily harm – where the applicant was sentenced to concurrent sentences of six months imprisonment for the offence of deprivation of liberty and 18 months imprisonment for the offence of assault occasioning bodily harm – where at sentence the applicant was the subject of an interim detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the sentencing judge had regard to the interim detention order in sentencing the applicant and did not fix a parole eligibility date pursuant to s 160B of the Penalties and Sentences Act 1992 (Qld) – where the applicant was in custody for the offences for a period of approximately 15 months – where no regard was given to the time the applicant had spent in pre-sentence custody at sentence – where the applicant seeks an extension of time to appeal against his sentence on the ground it is manifestly excessive – whether the application for an extension of time should be granted – whether the sentence imposed was manifestly excessive

Corrective Services Act 2006 (Qld), s 199
Criminal Code 1899 (Qld), s 668E
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 24, s 51
Penalties and Sentences Act 1992 (Qld), s 9(7B), s 159A, s 160B(3), s 160G(3)

R v Ainsworth[2000] QCA 163, applied
R v Armstrong[2001] QCA 559, cited
R v Cannon[2005] QCA 41, applied
R v King[2006] QCA 466, cited
R v Skedgwell [1999] 2 Qd R 97; [1998] QCA 93, applied

COUNSEL:

C Reid for the applicant
S J Farnden for the respondent

SOLICITORS:

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

MARGARET McMURDO…

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 George

Details

AGLC: R v George [2013] QCA 302
Case: [2013] QCA 302
Decision Date: 1 October 2013

CaseChat Overview and Summary

The case of R v George was heard in the Court of Appeal in Queensland. The applicant had pleaded guilty in the District Court to one count of deprivation of liberty and one count of assault occasioning bodily harm. The applicant was sentenced to concurrent sentences of six months imprisonment for the offence of deprivation of liberty and 18 months imprisonment for the offence of assault occasioning bodily harm. The applicant sought an extension of time to appeal against his sentence on the ground that it was manifestly excessive.

The court was required to determine whether the application for an extension of time should be granted and whether the sentence imposed was manifestly excessive. The applicant argued that the sentencing judge had failed to take into account the time the applicant had spent in pre-sentence custody. The applicant also argued that the sentence was manifestly excessive, given the applicant's age and lack of a criminal record. The court considered these arguments and found that the application for an extension of time should be granted and that the sentence imposed was manifestly excessive.

The court found that the sentencing judge had not taken into account the time the applicant had spent in pre-sentence custody. The court also found that the sentence was manifestly excessive, given the applicant's age and lack of a criminal record. The court set aside the sentences imposed below and ordered that the applicant be sentenced to three months imprisonment for the offence of assault occasioning bodily harm and be convicted but not further punished for the offence of deprivation of liberty. The applicant's appeal was allowed and the sentences imposed below were set aside.

Orders

Orders of the court

Delivered ex tempore on 1 October 2013:

1. Application for extension to apply for leave to appeal granted and time extended to 6 August 2013.

2. Application for leave to appeal granted.

3. Appeal allowed.

4. The sentences imposed below are set aside.

5. Instead, it is ordered that:

a. The applicant be sentenced to 3 months imprisonment for the offence of assault occasioning bodily harm.

b. The applicant be convicted but not further punished for the offence of deprivation of liberty.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v George [2013] QCA 302
PARTIES:	R v GEORGE, Farlane (applicant)
FILE NO/S:	CA No 191 of 2013 DC No 243 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	Orders delivered ex tempore 1 October 2013 Reasons delivered 11 October 2013
DELIVERED AT:	Brisbane
HEARING DATE:	1 October 2013
JUDGES:	Margaret McMurdo P and Mullins and Henry JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 1 October 2013: 1. Application for extension to apply for leave to appeal granted and time extended to 6 August 2013. 2. Application for leave to appeal granted. 3. Appeal allowed. 4. The sentences imposed below are set aside. 5. Instead, it is ordered that: a. The applicant be sentenced to 3 months imprisonment for the offence of assault occasioning bodily harm. b. The applicant be convicted but not further punished for the offence of deprivation of liberty.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant pleaded guilty in the District Court to one count of deprivation of liberty and one count of assault occasioning bodily harm – where the applicant was sentenced to concurrent sentences of six months imprisonment for the offence of deprivation of liberty and 18 months imprisonment for the offence of assault occasioning bodily harm – where at sentence the applicant was the subject of an interim detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the sentencing judge had regard to the interim detention order in sentencing the applicant and did not fix a parole eligibility date pursuant to s 160B of the Penalties and Sentences Act 1992 (Qld) – where the applicant was in custody for the offences for a period of approximately 15 months – where no regard was given to the time the applicant had spent in pre-sentence custody at sentence – where the applicant seeks an extension of time to appeal against his sentence on the ground it is manifestly excessive – whether the application for an extension of time should be granted – whether the sentence imposed was manifestly excessive Corrective Services Act 2006 (Qld), s 199 Criminal Code 1899 (Qld), s 668E Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 24, s 51 Penalties and Sentences Act 1992 (Qld), s 9(7B), s 159A, s 160B(3), s 160G(3) R v Ainsworth[2000] QCA 163, applied R v Armstrong[2001] QCA 559, cited R v Cannon[2005] QCA 41, applied R v King[2006] QCA 466, cited R v Skedgwell [1999] 2 Qd R 97; [1998] QCA 93, applied
COUNSEL:	C Reid for the applicant S J Farnden for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent