R v Heginbotham - [2009] QCA 32

SUPREME COURT OF QUEENSLAND

CITATION:

R v Heginbotham [2009] QCA 32

PARTIES:

R
v
HEGINBOTHAM, Ryan Keith
(applicant)

FILE NO/S:

CA No 22 of 2009
DC No 1943 of 2007
DC No 1944 of 2007
DC No 2401 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application for Reopening (Criminal)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

25 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2009

JUDGES:

Keane and Muir JJA, and P Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    The Court declares pursuant to s 159A(5) of the Penalties and Sentences Act 1992 (Qld):

(a)   the applicant RYAN KEITH HEGINBOTHAM has been held in presentence custody in relation to these proceedings and for no other reason on and from:

(i)   3 February 2006 to 7 July 2006 (a period of 155 days)

(ii)     15 August 2006 to 27 February 2007 (a period of 197 days)

(iii)   3 September 2007 to 12 October 2007 (a period of 39 days)

(b) the whole of that period (being a total of 391 days) to be imprisonment already served under the sentence imposed by this Court on 7 March 2008

2.    The application to reopen the proceedings under s 188 of the Penalties and Sentences Act 1992 (Qld) is dismissed

3.    The Office of the Director of Public Prosecutions is directed to give notice in writing forthwith to the Chief Executive (Corrective Services) of the declarations made by this Court and its details

CATCHWORDS:

CRIMINAL LAW — SENTENCE — SENTENCING ORDERS — CUSTODIAL ORDERS — OTHER MATTERS — where applicant sentenced separately with respect to offences convicted on guilty plea and offences convicted on trial — where sentencing court declared period of pre-sentence custody for trial offences by reference to pre-sentence custody certificate — where declared period did not include further period of pre-sentence custody — where applicant applied to reopen the sentence imposed to incorporate further period — where part of further period occurred prior to commission of plea offences and applied with respect to sentence thereto — whether part of further period applied with respect to sentence for plea offences also applicable with respect to sentence for trial offences — whether failure by sentencing court to incorporate further period of pre-sentence custody constitutes factual error of substance to reopen sentence

Corrective Services Act 2006 (Qld), s 180, s 184, s 187
Penalties and Sentences Act 1992 (Qld), s 159A, s 188

R v Heginbotham, McCartney & Room [2008] QCA 47, cited

COUNSEL:

T E Mossop for the applicant
M J Copley SC for the respondent

SOLICITORS:

Smith & Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: I have had the advantage of reading the reasons for judgment prepared by P Lyons J. I agree with his Honour's reasons and the orders proposed by his Honour.

MUIR JA: I agree with the reasons of P Lyons J and with…

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 Heginbotham

Details

AGLC: R v Heginbotham [2009] QCA 32
Case: [2009] QCA 32
Decision Date: 25 February 2009

CaseChat Overview and Summary

In the case of R v Heginbotham, the applicant, Ryan Keith Heginbotham, was sentenced by the court on charges stemming from both a guilty plea and a trial verdict. The key dispute in this case was whether the applicant could have his sentence reopened to include a further period of pre-sentence custody that was not initially declared by the sentencing court. The matter was heard and determined by the Supreme Court of Queensland.

The legal issues that the court had to decide revolved around whether the additional period of pre-sentence custody could be incorporated into the sentence, and specifically, whether any part of this additional custody that overlapped with the period prior to the commission of the plea offences could also be applied to the sentence for the trial offences. The central question was whether the failure of the sentencing court to include the additional custody period constituted a factual error of substance that would justify reopening the sentence.

The court examined the relevant statutory provisions and determined that the additional period of pre-sentence custody could be declared as time already served under the original sentence. However, the court found that the overlap of this additional custody with the period prior to the plea offences could not be applied to the sentence for the trial offences. Consequently, the court dismissed the application to reopen the proceedings, finding that the failure to include the additional custody period did not amount to a factual error of substance. The court did, however, declare the additional custody periods as time already served, directing the Office of the Director of Public Prosecutions to notify the Chief Executive of Corrective Services of these declarations.

Orders

Orders of the court

1. The Court declares pursuant to s 159A(5) of the Penalties and Sentences Act 1992 (Qld):

(a) the applicant RYAN KEITH HEGINBOTHAM has been held in presentence custody in relation to these proceedings and for no other reason on and from:

(i) 3 February 2006 to 7 July 2006 (a period of 155 days)

(ii) 15 August 2006 to 27 February 2007 (a period of 197 days)

(iii) 3 September 2007 to 12 October 2007 (a period of 39 days)

(b) the whole of that period (being a total of 391 days) to be imprisonment already served under the sentence imposed by this Court on 7 March 2008

2. The application to reopen the proceedings under s 188 of the Penalties and Sentences Act 1992 (Qld) is dismissed

3. The Office of the Director of Public Prosecutions is directed to give notice in writing forthwith to the Chief Executive (Corrective Services) of the declarations made by this Court and its details

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 Heginbotham [2009] QCA 32
PARTIES:	R v HEGINBOTHAM, Ryan Keith (applicant)
FILE NO/S:	CA No 22 of 2009 DC No 1943 of 2007 DC No 1944 of 2007 DC No 2401 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Application for Reopening (Criminal)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	25 February 2009
DELIVERED AT:	Brisbane
HEARING DATE:	13 February 2009
JUDGES:	Keane and Muir JJA, and P Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. *The Court declares pursuant to s 159A(5) of the Penalties and Sentences Act* 1992 (Qld): (a) the applicant RYAN KEITH HEGINBOTHAM has been held in presentence custody in relation to these proceedings and for no other reason on and from: (i) 3 February 2006 to 7 July 2006 (a period of 155 days) (ii) 15 August 2006 to 27 February 2007 (a period of 197 days) (iii) 3 September 2007 to 12 October 2007 (a period of 39 days) (b) the whole of that period (being a total of 391 days) to be imprisonment already served under the sentence imposed by this Court on 7 March 2008 2. The application to reopen the proceedings under s 188 of the Penalties and Sentences Act 1992 (Qld) is dismissed** 3. The Office of the Director of Public Prosecutions is directed to give notice in writing forthwith to the Chief Executive (Corrective Services) of the declarations made by this Court and its details
CATCHWORDS:	CRIMINAL LAW — SENTENCE — SENTENCING ORDERS — CUSTODIAL ORDERS — OTHER MATTERS — where applicant sentenced separately with respect to offences convicted on guilty plea and offences convicted on trial — where sentencing court declared period of pre-sentence custody for trial offences by reference to pre-sentence custody certificate — where declared period did not include further period of pre-sentence custody — where applicant applied to reopen the sentence imposed to incorporate further period — where part of further period occurred prior to commission of plea offences and applied with respect to sentence thereto — whether part of further period applied with respect to sentence for plea offences also applicable with respect to sentence for trial offences — whether failure by sentencing court to incorporate further period of pre-sentence custody constitutes factual error of substance to reopen sentence Corrective Services Act 2006 (Qld), s 180, s 184, s 187 Penalties and Sentences Act 1992 (Qld), s 159A, s 188 R v Heginbotham, McCartney & Room [2008] QCA 47, cited
COUNSEL:	T E Mossop for the applicant M J Copley SC for the respondent
SOLICITORS:	Smith & Associates for the applicant Director of Public Prosecutions (Queensland) for the respondent