R v Hundric - [2005] QCA 324

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hundric [2005] QCA 324

PARTIES:

R
v
HUNDRIC, Anthony George
(applicant)

FILE NO/S:

CA No 152 of 2005
DC No 64 of 2004
DC No 66 of 2004
DC No 144 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED EX TEMPORE ON:

30 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2005

JUDGES:

McMurdo P, Keane JA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application to adduce further evidence refused
2. Application for extension of time to apply for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION - QUEENSLAND - PROCEDURE - EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT - applicant five months out of time - explanation for delay that his lawyers did not inform him of his right to appeal and he only learnt of this from a visit by the Ombudsman - whether an extension of time should be granted

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - FRESH EVIDENCE - applicant sought to place further evidence before Court of Appeal which was not before the sentencing court - evidence was available to applicant at time of sentence - whether application to adduce further evidence should be granted

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OTHER OFFENCES - applicant convicted after plea of guilty to 16 counts of fraud, two counts of fraud with a circumstance of aggravation and one count of stealing - offences committed during operational period of a suspended sentence - sentenced to three and half years imprisonment on the aggravated fraud counts and lesser concurrent terms of imprisonment on the remaining offences - 16 month suspended sentence activated - recommendation for post-prison community based release after 28 months - without recommendation applicant would ordinarily have been eligible for post-prison community based release after 21 months - 34 years old at sentence - amount of property involved in offending $85,000 - prior criminal history for similar offences - whether special circumstances existed for sentencing judge to order a non-parole point more than halfway through the sentence - whether sentence manifestly excessive

R v Griinke [1992] 1 Qd R 196, applied
R v Powell [1995] QCA 583; CA No 293 of 1995, 4 October 1995, considered
R v Whelan [1997] QCA 305; CA No 285 of 1997, 26 August 1997, applied

COUNSEL:

The applicant appeared on his own behalf
M J Copley for the respondent

SOLICITORS:

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

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 Hundric

Details

AGLC: R v Hundric [2005] QCA 324
Case: [2005] QCA 324
Decision Date: 30 August 2005

CaseChat Overview and Summary

The case of R v Hundric involved the applicant appealing against his sentence, as well as seeking to introduce further evidence that was not considered during the original sentencing. The appeal was heard in the Queensland Court of Appeal. The applicant, who had been convicted of multiple counts of fraud and stealing, sought to challenge the length and severity of his sentence, arguing it was excessive given his age and the circumstances of the offences. Additionally, the applicant sought to introduce new evidence that was available at the time of sentencing but was not presented.

The legal issues before the court were twofold: first, whether an extension of time should be granted for the applicant to appeal his sentence, given he was five months out of the statutory time limit, and second, whether new evidence could be introduced at the appeal stage. The applicant claimed his delay was due to his lawyers not informing him of his right to appeal, and he only became aware of this from a visit by the Ombudsman. The court had to consider whether this constituted a sufficient explanation for the delay and if the new evidence could be admitted.

In dismissing the appeal, the court found that the applicant's explanation for the delay was not sufficient to warrant an extension of time. The court held that the applicant had been represented by legal counsel and it was his responsibility to ensure he was aware of his rights, including the right to appeal. Additionally, the court ruled that the new evidence could not be introduced as it was available at the time of sentencing and could have been presented. The court concluded that the sentence was appropriate given the nature and circumstances of the offences and the applicant's criminal history.

The orders of the court were that the application to adduce further evidence was refused and the application for an extension of time to appeal the sentence was also refused. Consequently, the applicant's appeal against sentence was dismissed.

Orders

Orders of the court

1. Application to adduce further evidence refused

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

Background

Background to the litigation

Full text does not contain this section.

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 Hundric [2005] QCA 324
PARTIES:	R v HUNDRIC, Anthony George (applicant)
FILE NO/S:	CA No 152 of 2005 DC No 64 of 2004 DC No 66 of 2004 DC No 144 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED EX TEMPORE ON:	30 August 2005
DELIVERED AT:	Brisbane
HEARING DATE:	30 August 2005
JUDGES:	McMurdo P, Keane JA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application to adduce further evidence refused 2. Application for extension of time to apply for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION - QUEENSLAND - PROCEDURE - EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT - applicant five months out of time - explanation for delay that his lawyers did not inform him of his right to appeal and he only learnt of this from a visit by the Ombudsman - whether an extension of time should be granted CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - FRESH EVIDENCE - applicant sought to place further evidence before Court of Appeal which was not before the sentencing court - evidence was available to applicant at time of sentence - whether application to adduce further evidence should be granted CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OTHER OFFENCES - applicant convicted after plea of guilty to 16 counts of fraud, two counts of fraud with a circumstance of aggravation and one count of stealing - offences committed during operational period of a suspended sentence - sentenced to three and half years imprisonment on the aggravated fraud counts and lesser concurrent terms of imprisonment on the remaining offences - 16 month suspended sentence activated - recommendation for post-prison community based release after 28 months - without recommendation applicant would ordinarily have been eligible for post-prison community based release after 21 months - 34 years old at sentence - amount of property involved in offending $85,000 - prior criminal history for similar offences - whether special circumstances existed for sentencing judge to order a non-parole point more than halfway through the sentence - whether sentence manifestly excessive R v Griinke [1992] 1 Qd R 196, applied R v Powell [1995] QCA 583; CA No 293 of 1995, 4 October 1995, considered R v Whelan [1997] QCA 305; CA No 285 of 1997, 26 August 1997, applied
COUNSEL:	The applicant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for…