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R v Getawan

R v Getawan

Case [2005] QCA 350 23 September 2005

Appeal

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Getawan [2005] QCA 350

PARTIES:

R
v
GETAWAN, Andrew Craig
(applicant/appellant)

FILE NO/S:

CA No 188 of 2005
DC No 21 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

23 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

19 September 2005

JUDGES:

Jerrard and Keane JJA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Grant the application for an extension of time
2. Allow the application for leave and appeal against sentence
3. Vary the sentence imposed by deleting the order that the sentence of three years be suspended after the applicant has served nine months, and ordering instead that it be suspended after he has served six months

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – applicant pleaded guilty to entering premises with intent to commit an indictable offence and armed robbery in company – applicant and a co-offender both sentenced to three years imprisonment suspended after nine months for an operational period of four years – co-offender had sentence reduced on appeal to a suspension after 83 days of imprisonment – applicant subsequently applied for extension of time to bring sentence application on the basis of parity with his co-offender – whether extension of time should be granted

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 – applicant’s co-offender participated in police interview and named applicant as being involved in offence – applicant refused police interview on legal advice but entered early guilty plea – applicant subsequently breached bail three times prior to sentence – applicant had sole care of eight year old son from August 2004 due to mother’s drug problems – applicant had good employment record and rehabilitative prospects – whether in comparison with co-offender’s reduction the applicant’s period of actual imprisonment was manifestly excessive

R v Basawa [2001] QCA 222; CA No 81 of 2001, 5 June 2001, considered
R v Briese; ex parte A-G [1997] QCA 10; [1998] 1 Qd R 487, considered
R v Briody [2002] QCA 364; (2002) 134 A Crim R 170, considered
R v Hammond [1996] QCA 508; [1997] 2 Qd R 195, cited
R v Slattery [2001] QCA 108; CA No 354 of 2000, 21 March 2001, considered
R v Taylor & Napatali [1999] QCA 323; (1999) 106 A Crim R 578, considered
R v Tran; ex parte A-G [2002] QCA 21; (2002) 128 A Crim R 1, considered

COUNSEL:

C A Cuthbert for the applicant/appellant
M R Byrne for the respondent

SOLICITORS:

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 Getawan

Details

AGLC: R v Getawan [2005] QCA 350
Case: [2005] QCA 350
Decision Date: 23 September 2005

CaseChat Overview and Summary

The case of R v Getawan involved the applicant appealing against his sentence after having pleaded guilty to entering premises with intent to commit an indictable offence and armed robbery in company. Both the applicant and his co-offender were initially sentenced to three years imprisonment, suspended after nine months for an operational period of four years. The co-offender subsequently had their sentence reduced on appeal to a suspension after 83 days of imprisonment. The applicant applied for an extension of time to bring their sentence application, arguing for parity with their co-offender. The primary legal issue before the court was whether the extension of time should be granted and whether the applicant’s period of actual imprisonment was manifestly excessive in comparison with the co-offender’s reduced sentence.

The court considered the principle of parity in sentencing, recognising that the applicant's co-offender had their sentence reduced based on the principle of parity. The court noted that the applicant had participated in the offence but had refused a police interview on legal advice and had entered an early guilty plea. Additionally, the applicant had breached bail three times prior to sentencing, and had sole care of a young child due to the mother’s drug issues. Despite these factors, the court found that the applicant had a good employment record and rehabilitative prospects. The court concluded that in comparison with the co-offender's reduced sentence, the applicant’s period of actual imprisonment was indeed manifestly excessive.

Consequently, the court granted the application for an extension of time, allowed the application for leave and appeal against sentence, and varied the sentence imposed. The sentence was altered to delete the order that the sentence of three years be suspended after the applicant had served nine months, and instead ordered that it be suspended after the applicant had served six months. This decision reflected the court's consideration of the principle of parity and the applicant's personal circumstances.

Orders

Orders of the court

1. Grant the application for an extension of time

2. Allow the application for leave and appeal against sentence

3. Vary the sentence imposed by deleting the order that the sentence of three years be suspended after the applicant has served nine months, and ordering instead that it be suspended after he has served six months

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.

Citations

AGLC Citation

R v Getawan [2005] QCA 350

Most Recent Citation

R v Perkins & Gooley [2005] QCA 377

Cases citing this decision · 4 of 4 shown

R v. Wilkins; ex parte A-G (Qld)
[2008] QCA 272 Para 1

…sition of a custodial sentence for these offences. [1](2002) 134 A Crim R 170; [2002] QCA 364. [2][2004] QCA 259 at [16]. [3](2005) 156 A Crim R 128; [2005] QCA 350 at 132 [14]. [4][2007] QCA 319.…
R v Mayall
[2008] QCA 202 Para 20

…, R v Dullroy & Yates; ex parte A-G (Qld) [2005] QCA 219, and cases referred to therein. He also submitted that R v Horne [2005] QCA 218, R v Getawan [2005] QCA 350, and R v Perkins & Gooley [2005] QCA 377 supported his contention that a sentence of three years imprisonment for this offending was towards to the t…
R v Sherman
[2007] QCA 322

…rcumstances including youth and prospects of rehabilitation – whether non-custodial sentence should have been imposed R v Getawan [2005] QCA 350; CA No 188 of 2005, 23 September 2005, cited COUNSEL: A W Moynihan SC, with K Prskalo, for the applicant S G Bain for the respondent SOLICITORS: Legal Aid Queensland for…
R v Perkins and Gooley
[2005] QCA 377 Para 1

…hemselves. [1][1994] QCA 147; CA No 29 of 1994, 13 May 1994. [2](1984) 154 CLR 606, 610 - 611. [3][2005] QCA 218; CA No 104 of 2005, 22 June 2005. [4][2005] QCA 350; CA No 188 of 2005, 23 September 2005.…

View all 4 citing cases →

Cases cited in this decision · 9 of 9 shown

R v Horne
[2005] QCA 218 Para 1

…bag of money to Mr Horne, and Mr Getawan and Mr Horne then ran out the rear door. [1]These facts are taken from the judgment of R v Horne [2005] QCA 218…
R v Briody
[2002] QCA 364 Para 1

…8; R v Lovell [1999] 2 Qd R 79; R v Basawa [2001] QCA 222; R v Slattery [2001] QCA 108; R v Tran; ex parte Attorney-General [2002] QCA 21; R v Briody [2002] QCA 364; and R v Bartorillo & Bartorillo [1996] QCA 381.…
R v Tran; ex parte
[2002] QCA 21 Para 1

…ali (1999) 106 A Crim R 578; R v Lovell [1999] 2 Qd R 79; R v Basawa [2001] QCA 222; R v Slattery [2001] QCA 108; R v Tran; ex parte Attorney-General [2002] QCA 21; R v Briody [2002] QCA 364; and R v Bartorillo & Bartorillo [1996] QCA 381.…
R v Basawa
[2001] QCA 222 Para 1

…uded R v Briese ; ex parte Attorney-General [1998] 1 Qd R 487; R v Taylor & Napatali (1999) 106 A Crim R 578; R v Lovell [1999] 2 Qd R 79; R v Basawa [2001] QCA 222; R v Slattery [2001] QCA 108; R v Tran; ex parte Attorney-General [2002] QCA 21; R v Briody [2002] QCA 364; and R v Bartorillo & Bartorillo [1996] QC…
R v Slattery
[2001] QCA 108 Para 1

…torney-General [1998] 1 Qd R 487; R v Taylor & Napatali (1999) 106 A Crim R 578; R v Lovell [1999] 2 Qd R 79; R v Basawa [2001] QCA 222; R v Slattery [2001] QCA 108; R v Tran; ex parte Attorney-General [2002] QCA 21; R v Briody [2002] QCA 364; and R v Bartorillo & Bartorillo [1996] QCA 381.…
R v Taylor & Napatali; ex parte A-G (Qld)
[1999] QCA 323

…v Slattery [2001] QCA 108; CA No 354 of 2000, 21 March 2001, considered R v Taylor & Napatali [1999] QCA 323; (1999) 106 A Crim R 578, considered R v Tran; ex parte A-G [2002] QCA 21; (2002) 128 A Crim R 1, considered COUNSEL: C A Cuthbert for the applicant/appellant M R Byrne for the respondent SOLICITORS: O’Sul…
R v Briese; ex parte Attorney-General
[1997] QCA 10

…v Basawa [2001] QCA 222; CA No 81 of 2001, 5 June 2001, considered R v Briese ; ex parte A-G [1997] QCA 10; [1998] 1 Qd R 487, considered R v Briody [2002] QCA 364; (2002) 134 A Crim R 170, considered R v Hammond [1996] QCA 508; [1997] 2 Qd R 195, cited R v Slattery [2001] QCA 108; CA No 354 of 2000, 21 March 2…
R v Hammond
[1996] QCA 508

…R 487, considered R v Briody [2002] QCA 364; (2002) 134 A Crim R 170, considered R v Hammond [1996] QCA 508; [1997] 2 Qd R 195, cited R v Slattery [2001] QCA 108; CA No 354 of 2000, 21 March 2001, considered R v Taylor & Napatali [1999] QCA 323; (1999) 106 A Crim R 578, considered R v Tran; ex parte A-G [2002] Q…
R v Bartorillo and Bartorillo
[1996] QCA 381 Para 1

…] QCA 222; R v Slattery [2001] QCA 108; R v Tran; ex parte Attorney-General [2002] QCA 21; R v Briody [2002] QCA 364; and R v Bartorillo & Bartorillo [1996] QCA 381.…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Getawan [2005] QCA 350
PARTIES:	R v GETAWAN, Andrew Craig (applicant/appellant)
FILE NO/S:	CA No 188 of 2005 DC No 21 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	23 September 2005
DELIVERED AT:	Brisbane
HEARING DATE:	19 September 2005
JUDGES:	Jerrard and Keane JJA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant the application for an extension of time 2. Allow the application for leave and appeal against sentence 3. Vary the sentence imposed by deleting the order that the sentence of three years be suspended after the applicant has served nine months, and ordering instead that it be suspended after he has served six months
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – applicant pleaded guilty to entering premises with intent to commit an indictable offence and armed robbery in company – applicant and a co-offender both sentenced to three years imprisonment suspended after nine months for an operational period of four years – co-offender had sentence reduced on appeal to a suspension after 83 days of imprisonment – applicant subsequently applied for extension of time to bring sentence application on the basis of parity with his co-offender – whether extension of time should be granted 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 – applicant’s co-offender participated in police interview and named applicant as being involved in offence – applicant refused police interview on legal advice but entered early guilty plea – applicant subsequently breached bail three times prior to sentence – applicant had sole care of eight year old son from August 2004 due to mother’s drug problems – applicant had good employment record and rehabilitative prospects – whether in comparison with co-offender’s reduction the applicant’s period of actual imprisonment was manifestly excessive R v Basawa [2001] QCA 222; CA No 81 of 2001, 5 June 2001, considered R v Briese; ex parte A-G [1997] QCA 10; [1998] 1 Qd R 487, considered R v Briody [2002] QCA 364; (2002) 134 A Crim R 170, considered R v Hammond [1996] QCA 508; [1997] 2 Qd R 195, cited R v Slattery [2001] QCA 108; CA No 354 of 2000, 21 March 2001, considered R v Taylor & Napatali [1999] QCA 323; (1999) 106 A Crim R 578, considered R v Tran; ex parte A-G [2002] QCA 21; (2002) 128 A Crim R 1, considered
COUNSEL:	C A Cuthbert for the applicant/appellant M R Byrne for the respondent
SOLICITORS: