R v Herbert - [2014] QCA 83

SUPREME COURT OF QUEENSLAND

CITATION:

R v Herbert [2014] QCA 83

PARTIES:

R
v
HERBERT, Jason Robert
(applicant)

FILE NO/S:

CA No 321 of 2013
DC No 249 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

17 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2014

JUDGES:

Fraser, Gotterson and Morrison JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for extension of time for applying for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant was convicted on a plea of guilty to a count of armed robbery – where the applicant was sentenced to nine years imprisonment with a fixed parole eligibility date – where the applicant applied for an extension of time in which to appeal against the sentence – whether the sentence was manifestly excessive – whether application for extension of time should be granted

Penalties and Sentences Act 1992 (Qld), s 9(2)(l)

R v Bealing [2003] QCA 323, cited
R v Bradford[1997] QCA 391, cited
R v Brennan[2001] QCA 253, cited
R v Herbert, unreported, Western Australia Court of Criminal Appeal, No 63 of 1996, 18 April 1997, related
R v Johnson[1998] QCA 182, cited
R v Kapitano[2012] QCA 288, cited
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied

COUNSEL:

The applicant appeared on his own behalf
P J McCarthy for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of Gotterson JA and the order proposed by his Honour.

GOTTERSON JA: On 11 September 2013 at the District Court at Beenleigh, the applicant, Jason Robert Herbert, was convicted on a plea of guilty to a count of armed robbery committed on 19 January 2013. He was sentenced that day to imprisonment for a term of nine years with a parole eligibility date fixed at 10 September 2017. The learned sentencing judge declined to accede to a prosecution submission that a serious violent offender declaration be made.

The applicant filed a notice for application of extension of time within which to appeal (Form 28) in this Court on 18 December 2013. He also filed with it an application for leave to appeal against sentence (Form 26). That document lists a single ground of appeal, namely, that the sentence is manifestly excessive in all the circumstances.

Two issues which are central to the exercise of the discretion to grant an extension of time within which to appeal are whether there is good reason for having delayed in filing an application for leave to appeal and whether it would be in the interests of justice to grant the extension…

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 Herbert

Details

AGLC: R v Herbert [2014] QCA 83
Case: [2014] QCA 83
Decision Date: 17 April 2014

CaseChat Overview and Summary

The case of R v Herbert involved the applicant, Herbert, who was convicted of armed robbery and sentenced to nine years imprisonment with a fixed parole eligibility date. Herbert applied for an extension of time in which to appeal against the sentence, arguing that the sentence was manifestly excessive. The matter was heard in the relevant appellate court. The primary legal issue the court needed to decide was whether the sentence imposed was manifestly excessive, and if so, whether the application for an extension of time should be granted.

The court examined the nature of the offence, the circumstances of the crime, and the sentencing principles applicable. It considered the gravity of the offence and the proportionality of the sentence in relation to the crime committed. The court assessed the arguments presented by Herbert regarding the excessiveness of the sentence and the justification for an extension of time. The court found that the sentence was not manifestly excessive and did not meet the threshold required for an extension of time. The application for an extension of time for Herbert to appeal against the sentence was thus refused.

In conclusion, the court upheld the sentence imposed on Herbert and denied the application for an extension of time to appeal. The court found that the sentence was proportionate to the offence committed and did not warrant an extension of time for appeal.

Orders

Orders of the court

Application for extension of time for applying for leave to appeal against sentence refused.

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 Herbert [2014] QCA 83
PARTIES:	R v HERBERT, Jason Robert (applicant)
FILE NO/S:	CA No 321 of 2013 DC No 249 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	17 April 2014
DELIVERED AT:	Brisbane
HEARING DATE:	11 April 2014
JUDGES:	Fraser, Gotterson and Morrison JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for extension of time for applying for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant was convicted on a plea of guilty to a count of armed robbery – where the applicant was sentenced to nine years imprisonment with a fixed parole eligibility date – where the applicant applied for an extension of time in which to appeal against the sentence – whether the sentence was manifestly excessive – whether application for extension of time should be granted Penalties and Sentences Act 1992 (Qld), s 9(2)(l) R v Bealing [2003] QCA 323, cited R v Bradford[1997] QCA 391, cited R v Brennan[2001] QCA 253, cited R v Herbert, unreported, Western Australia Court of Criminal Appeal, No 63 of 1996, 18 April 1997, related R v Johnson[1998] QCA 182, cited R v Kapitano[2012] QCA 288, cited R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied
COUNSEL:	The applicant appeared on his own behalf P J McCarthy for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent