R v Gopurenko - [2017] QDC 107

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Gopurenko [2017] QDC 107

PARTIES:

THE QUEEN

v

STEPHEN JOHN GOPURENKO

(applicant)

FILE NO/S:

72/14

DIVISION:

Criminal

PROCEEDING:

Application to re-open sentence

ORIGINATING COURT:

District Court at Maroochydore

District Court at Brisbane (hearing)

DELIVERED ON:

5 May 2017

DELIVERED AT:

District Court at Maroochydore

HEARING DATE:

31 March 2017

JUDGE:

Long SC DCJ

ORDER:

The application is dismissed.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – REOPENING – Where the applicant applies for extension of time for bringing an application pursuant to s 188 of the Penalties and Sentences Act 1992 to re-open the sentence imposed on him on 29 April 2014 – Where the application was filed on 18 November 2016 – Where the applicant received correspondence from the Adult Parole Board of Victoria, which identified an outstanding liability that he has, or may have, in respect of a sentence imposed prior to the sentence being imposed in Queensland – Where, in the sentencing proceedings, the parties proceeded upon the basis that the time spent in custody in Queensland would count towards the applicant’s Victorian sentence and therefore be, in effect, a concurrent sentence – Where the sentencing Judge, in sentencing the applicant, recognised that there may have remained difficulties in relation to the Victorian sentence and the applicant’s release to parole – Whether the sentence was imposed on a clear factual error of substance

LEGISLATION:

Corrections Act 1986 (Vic) ss 77(1); 77A(1); 77A(2); 77A(3); 77A(4); 77B(1); 77B(2); 77C

Penalties and Sentences Act 1992 (Qld) ss 188(1)(c); 188(5)(b)(i); 188(5)(b)(ii)

CASES:

R v Benson [2014] QCA 188

R v Brown [2002] QCA 426

R v Cassar; Ex-Parte Attorney General (Qld) [2002] 1 Qd R 410

R v Davis (1999) 109 A Crim R 314

R v Gopurenko [2014] QCA 255

R v Herbert [2014] QCA 83

R v MacKenzie [2002] 1 Qd R 410

R v Nicholsen [2016] QCA 315

R v Voss; Ex-Parte Attorney General (Qld) [2001] QCA 483

COUNSEL:

S Lynch for the applicant

T Corsbie for the respondent

SOLICITORS:

Bouchier Khan Lawyers for the applicant

Office of the Director of Public Prosecutions for the respondent

Introduction

In this matter, the applicant applies for extension of time for bringing an application to re-open the sentence imposed on him by this Court on 29 April 2014.

This application was filed on 18 November 2016 and therefore well outside the 28 day period provided in s 188(5)(b)(i) of the Penalties and Sentences Act 1992 (“PSA”) for making such an application, subject to any further time that may be allowed by the court on such application and pursuant to s 188(5)(b)(ii).

As will be noted, the circumstances in explanation of such a late application are intimately entwined with the contentions as to the merits of the application, which themselves raise quite an unusual situation. That includes the fact that this application is made notwithstanding an unsuccessful application by the applicant, to the Court of Appeal, for leave to appeal his sentence. The judgment of…

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 Gopurenko

Details

AGLC: R v Gopurenko [2017] QDC 107
Case: [2017] QDC 107
Decision Date: 5 May 2017

CaseChat Overview and Summary

The case of R v Gopurenko involved an application by the applicant for an extension of time to bring an application to re-open his sentence under section 188 of the Penalties and Sentences Act 1992. The applicant's original sentence was imposed on 29 April 2014, and his application was filed on 18 November 2016. The primary issue before the court was whether the applicant could rely on an error in the sentencing process that resulted from a misunderstanding about the effect of time spent in custody in Queensland on his Victorian sentence. The applicant argued that the sentence was imposed on a clear factual error of substance, which would warrant re-opening the sentence.

The court considered the arguments presented by the applicant and examined the circumstances surrounding the sentencing process. The court noted that the sentencing judge had recognised potential difficulties in relation to the Victorian sentence and the applicant’s release to parole. However, the court found that the application was made outside the prescribed time limits and that there were no exceptional circumstances to justify an extension of time. The court concluded that the application did not meet the criteria for re-opening the sentence as it did not involve a clear factual error of substance but rather a misunderstanding of the legal framework governing concurrent sentences.

Consequently, the court dismissed the application for an extension of time. The court held that the applicant had failed to demonstrate any exceptional circumstances that would warrant an extension of the time limit for making the application. The court emphasised the importance of adhering to statutory time limits for applications to re-open sentences, unless there are compelling reasons to do otherwise. The dismissal of the application means that the original sentence remains in effect.

Orders

Orders of the court

The application is dismissed.

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 Gopurenko [2017] QDC 107
PARTIES:	THE QUEEN v STEPHEN JOHN GOPURENKO (applicant)
FILE NO/S:	72/14
DIVISION:	Criminal
PROCEEDING:	Application to re-open sentence
ORIGINATING COURT:	District Court at Maroochydore District Court at Brisbane (hearing)
DELIVERED ON:	5 May 2017
DELIVERED AT:	District Court at Maroochydore
HEARING DATE:	31 March 2017
JUDGE:	Long SC DCJ
ORDER:	The application is dismissed.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – REOPENING – Where the applicant applies for extension of time for bringing an application pursuant to s 188 of the Penalties and Sentences Act 1992 to re-open the sentence imposed on him on 29 April 2014 – Where the application was filed on 18 November 2016 – Where the applicant received correspondence from the Adult Parole Board of Victoria, which identified an outstanding liability that he has, or may have, in respect of a sentence imposed prior to the sentence being imposed in Queensland – Where, in the sentencing proceedings, the parties proceeded upon the basis that the time spent in custody in Queensland would count towards the applicant’s Victorian sentence and therefore be, in effect, a concurrent sentence – Where the sentencing Judge, in sentencing the applicant, recognised that there may have remained difficulties in relation to the Victorian sentence and the applicant’s release to parole – Whether the sentence was imposed on a clear factual error of substance
LEGISLATION:	Corrections Act 1986 (Vic) ss 77(1); 77A(1); 77A(2); 77A(3); 77A(4); 77B(1); 77B(2); 77C Penalties and Sentences Act 1992 (Qld) ss 188(1)(c); 188(5)(b)(i); 188(5)(b)(ii)
CASES:	R v Benson [2014] QCA 188 R v Brown [2002] QCA 426 R v Cassar; Ex-Parte Attorney General (Qld) [2002] 1 Qd R 410 R v Davis (1999) 109 A Crim R 314 R v Gopurenko [2014] QCA 255 R v Herbert [2014] QCA 83 R v MacKenzie [2002] 1 Qd R 410 R v Nicholsen [2016] QCA 315 R v Voss; Ex-Parte Attorney General (Qld) [2001] QCA 483
COUNSEL:	S Lynch for the applicant T Corsbie for the respondent
SOLICITORS:	Bouchier Khan Lawyers for the applicant Office of the Director of Public Prosecutions for the respondent