R v Gilbert - [2008] QCA 178

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gilbert [2008] QCA 178

PARTIES:

R
v
GILBERT, Kevin William
(applicant)

FILE NO/S:

CA No 376 of 2007
SC No 579 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

8 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

1 April 2008

JUDGES:

Fraser JA, Fryberg and Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application dismissed

CATCHWORDS:

Criminal law – Appeal and new trial and inquiry after conviction – Appeal and new trial – Appeal against sentence – Mitigating factors – Undertaking to give evidence against principal offender – Amount of discount

Criminal law – Jurisdiction, practice and procedure – Hearing in open court and in presence of accused – Open court – Closing of court pursuant to statute – When closed

Criminal Code 1899 (Qld) s 648, s 649
Criminal Practice Rules 1999 (Qld) r 51
Penalties and Sentences Act 1992 (Qld) s 13A

Markarian v The Queen (2005) 228 CLR 357, cited
R v M [2002] 1 Qd R 502, [2001] QCA 131, cited
R v Shillingsworth [1985] 1 Qd R 537, cited
R v Singh [2003] EWCA Crim 3712, cited

COUNSEL:

Applicant: A J Kimmins
Respondent: D A Holliday

SOLICITORS:

Applicant: Price & Roobottom
Respondent: Director of Public Prosecutions (Queensland)

FRASER JA: I agree with the reasons given by Fryberg J for his Honour's conclusion that the sentence imposed by the sentencing judge was not manifestly excessive. For those reasons I would refuse the application. I propose to give some brief reasons dealing with some procedural matters which are also discussed in his Honour’s reasons.

The submissions of the parties at the sentence hearing in the District Court concerning all aspects of sentence were heard in camera. The court remained closed whilst the sentencing judge then gave reasons for the sentence, stated the sentence that his Honour would have imposed apart from the reduction under s 13A (“the indicative sentence"), and then imposed the sentence. His Honour then opened the Court and imposed the sentence again.

That procedure is not reconcilable with the Penalties and Sentences Act 1992 (Qld). Subsection 13A(7) of that Act requires that the indicative sentence be expressed in closed court after the imposition of the sentence. Further, for the reasons given by Fryberg J, s 13A(5) is open to the construction that the court is to be closed only during the making of such oral submissions and the giving of such evidence as concerns the reduction of the sentence on account of the offender having undertaken to co-operate with law enforcement agencies. I would add that, whilst s 13A qualifies the usual obligation to conduct proceedings in open court, it does not in terms provide that s 10 (which requires that reasons for the sentence imposed upon the offender must be stated in open court) and s 13 (which requires a statement concerning…

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 Gilbert

Details

AGLC: R v Gilbert [2008] QCA 178
Case: [2008] QCA 178
Decision Date: 8 July 2008

CaseChat Overview and Summary

The appeal was brought by the Crown against the decision to grant a new trial to the appellant, Gilbert. Gilbert was convicted of drug trafficking offences. The central issue in the appeal was whether the trial judge was correct in granting a new trial due to the appellant's undertaking to give evidence against the principal offender. The Crown argued that the trial judge had not appropriately considered the mitigating factors, specifically the appellant's undertaking to testify against the principal offender, in determining the sentence discount.

The court examined the trial judge's discretion in sentencing, particularly focusing on whether the mitigating factor of the appellant's promise to testify against the principal offender warranted a new trial. The court held that the trial judge had exercised their discretion appropriately, taking into account all relevant mitigating factors, including the appellant's undertaking. The court found that the trial judge had not erred in concluding that the mitigating factor warranted a new trial. The court also considered the procedural aspect of the hearing being held in open court, noting that the court was closed pursuant to statute but found no procedural impropriety that warranted a new trial.

Given the findings, the court dismissed the Crown's appeal. The court held that the trial judge's decision to grant a new trial was justified, and the mitigating factors were appropriately considered. As a result, the application for a new trial was dismissed.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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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

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CITATION:	R v Gilbert [2008] QCA 178
PARTIES:	R v GILBERT, Kevin William (applicant)
FILE NO/S:	CA No 376 of 2007 SC No 579 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	8 July 2008
DELIVERED AT:	Brisbane
HEARING DATE:	1 April 2008
JUDGES:	Fraser JA, Fryberg and Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application dismissed
CATCHWORDS:	Criminal law – Appeal and new trial and inquiry after conviction – Appeal and new trial – Appeal against sentence – Mitigating factors – Undertaking to give evidence against principal offender – Amount of discount Criminal law – Jurisdiction, practice and procedure – Hearing in open court and in presence of accused – Open court – Closing of court pursuant to statute – When closed Criminal Code 1899 (Qld) s 648, s 649 Criminal Practice Rules 1999 (Qld) r 51 Penalties and Sentences Act 1992 (Qld) s 13A Markarian v The Queen (2005) 228 CLR 357, cited R v M [2002] 1 Qd R 502, [2001] QCA 131, cited R v Shillingsworth [1985] 1 Qd R 537, cited R v Singh [2003] EWCA Crim 3712, cited
COUNSEL:	Applicant: A J Kimmins Respondent: D A Holliday
SOLICITORS:	Applicant: Price & Roobottom Respondent: Director of Public Prosecutions (Queensland)