SUPREME COURT OF QUEENSLAND
CITATION:
R v Gerhardt [2019] QCA 283
PARTIES:
R
v
GERHARDT, Brett Anthony
(applicant)FILE NO/S:
CA No 181 of 2019
SC No 13 of 2019DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Supreme Court at Rockhampton – Date of Sentence: 13 May 2019 (Crow J)
DELIVERED ON:
Date of Orders: 1 November 2019
Date of Publication of Reasons: 6 December 2019DELIVERED AT:
Brisbane
HEARING DATE:
1 November 2019
JUDGES:
Fraser JA and Henry and Brown JJ
ORDERS:
Date of Orders: 1 November 2019:
1. Application for leave to appeal granted.
2. Appeal allowed.
3. Quash the decision to reopen the original sentence proceeding and the resentence imposed on 3 June 2019.
4. In lieu thereof, order that the original sentence proceeding not be reopened.
5. Confirm the orders made in the Supreme Court upon the sentencing of the applicant on 13 May 2019.
CATCHWORDS:
CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – IRREGULARITIES – PARTICULAR CASES – where the applicant was sentenced to three years imprisonment on a plea of guilty to aggravated possession of methylamphetamine – where, after sentence, the applicant was called as a witness against his co-accused on the indictment – where the applicant was warned he would expose himself to resentence if his evidence varied from the agreed statement of facts tendered at sentence – where the applicant attempted to claim privilege against self-incrimination and was wrongly compelled to give evidence – where that evidence was inconsistent with the aforesaid statement of facts, and this was relied upon as evidencing a clear factual error of substance in order to reopen the sentence, resentencing the applicant to nine months more – whether there was any admissible evidence in support of the application to resentence – whether inconsistency with the agreed schedule of facts amounted to a clear factual error justifying the reopening of the sentence proceeding – whether the alleged error was an error of substance – whether the reopening of the sentence miscarried
Criminal Code (Qld), s 668, s 668D, s 668E, s 669, s 671B
Evidence Act 1977 (Qld), s 10(1), s 132C
Penalties and Sentences Act 1992 (Qld), s 15(1), s 188(1)(c), s 188(5)(b)
Uniform Civil Procedure Rules 1999 (Qld) r 766(4)Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, cited
Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22, cited
Gemmell v Le Roi Homestyle Cookies Pty Ltd (in liq) (2014) 46 VR 583; [2014] VSCA 182, followed
Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, applied
Power v R (2014) 43 VR 261; [2014] VSCA 146, cited
R v Blow [1963] QWN 1, applied
R v Cassar; Ex parte Attorney-General (Qld) [2002] 1 Qd R 386; [2001] QCA 300, cited
R v D [1996] 1 Qd R 363; [1995] QCA 329, followed
R v Garbett (1847) 1 Den 236; (1847) 169 ER 227; [1847]…
Continue reading R v Gerhardt
Sign in free to access the full text
- AGLC
- R v Gerhardt [2019] QCA 283
- Case
- [2019] QCA 283
- Decision Date
CaseChat Overview and Summary
The legal issues in this case centred on whether there was any admissible evidence in support of the application to resentence, whether the inconsistency with the agreed schedule of facts amounted to a clear factual error justifying the reopening of the sentence proceeding, whether the alleged error was an error of substance, and whether the reopening of the sentence proceeding miscarried. The applicant argued that the evidence relied upon by the sentencing judge to reopen the sentence proceeding was inadmissible and that the inconsistency with the agreed schedule of facts did not amount to a clear factual error. The applicant also contended that the reopening of the sentence proceeding miscarried due to the inadmissible evidence.
The court found that the evidence relied upon by the sentencing judge was inadmissible, as it was based on the applicant's compelled testimony that varied from the agreed statement of facts. The court held that the inconsistency with the agreed schedule of facts did not amount to a clear factual error, as the applicant's evidence was not relevant to the sentence imposed. Furthermore, the court held that the reopening of the sentence proceeding miscarried due to the inadmissible evidence. As a result, the appeal was allowed, and the decision to reopen the original sentence proceeding and the resentence imposed was quashed.
On 1 November 2019, the court granted the application for leave to appeal, allowed the appeal, and quashed the decision to reopen the original sentence proceeding and the resentence imposed on 3 June 2019. The court ordered that the original sentence proceeding not be reopened and confirmed the orders made in the Supreme Court upon the sentencing of the applicant on 13 May 2019.
Orders
Orders of the court
Date of Orders: 1 November 2019:
1. Application for leave to appeal granted.
2. Appeal allowed.
3. Quash the decision to reopen the original sentence proceeding and the resentence imposed on 3 June 2019.
4. In lieu thereof, order that the original sentence proceeding not be reopened.
5. Confirm the orders made in the Supreme Court upon the sentencing of the applicant on 13 May 2019.
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.