R v Hughes

[2003] QCA 460

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hughes [2003] QCA 460

PARTIES:

R
v
HUGHES, Roland Lance
(applicant)

FILE NO/S:

CA  No 308 of 2003

DC No 1153 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

24 October 2003

DELIVERED AT:

Brisbane

HEARING DATE:

10 October 2003

JUDGES:

McPherson JA, Holmes and McMurdo JJ

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Leave to appeal against sentence granted

2.   Appeal allowed

3.   Sentence imposed in the District Court on 29 August 2003 be varied by suspending what remains of it from the date of delivery of this judgment for an operational period of two years from 29 August 2003

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE – GROUNDS FOR INTEREFERENCE - where application for leave to appeal against sentence – where medical evidence before sentencing judge indicated applicant suffered from a medical condition with a median survival time of 5 – 7 years – where medical report subsequent to sentence indicates applicant’s life expectancy is now between months and 2 years – where applicant does not submit sentencing judge erred and seeks to rely solely on subsequent medical report – where power to interfere with sentence conferred by s 668E where Court is of the opinion some other sentence should have been passed – where Court is concerned with the circumstances as they existed at the date of sentence – whether circumstances existing at the date of sentence can include facts then existing but not the subject of adduced evidence – whether Court should admit evidence of subsequent report and allow appeal

Corrective Services Act 2000 (Qld), s 133
Criminal Code 1899 (Qld) , s 668E

R v Goodwin (1990) 51 A Crim R 328, considered
R v Cornale [1993] 2 Qd R 294, considered
R v Leith [2000] 1 Qd R 660, distinguished
R v Maniadis [1997] 1 Qd R 593, considered

COUNSEL:

A Moynihan for the applicant

S Bain for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. McPHERSON JA: The facts are set out in the reasons for judgment of McMurdo J, which I have had the advantage of reading and with which I agree.

1. The jurisdiction on appeal to set aside or vary a sentence imposed for a crime was first conferred by s 668E(3) of the Code, which was introduced by the Criminal Code Amendment Act 1913. Like other such provisions in Australia, it was based on the Criminal Appeal Act 1907 in England. On an appeal against sentence, s 668E(3) adopts as the criterion for interference that “some other sentence … is warranted in law and should have been passed.” If that requirement is satisfied, the sentence is to be quashed, and that other sentence passed in substitution…