R v. Jacobs - [2007] QSC 235

SUPREME COURT OF QUEENSLAND

CITATION:

R v Jacobs [2007] QSC 235

PARTIES:

THE QUEEN
v
RAYMOND MARK JACOBS

(applicant)

FILE NO/S:

381/96

DIVISION:

Trial Division

PROCEEDING:

Application to reopen sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 September 2007

DELIVERED AT:

Brisbane

HEARING DATE:

27 August 2007

JUDGE:

Mackenzie J

ORDER:

1. Extension of time within which to apply refused

2. Application dismissed

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – FACTUAL BASIS FOR SENTENCE – where applicant sentenced for trafficking amphetamines to 14 years imprisonment – where applicant submits that information was not available to the sentencing judge concerning complaints against the police in relation to confiscation of money – where sentencing judge made reference to an imprecise amount of money being found with property of the applicant – where large delay exists between sentence and application – whether a clear factual error of substance has been established to justify granting an extension of time in order to bring the application

Penalties and Sentences Act 1992 (Qld) s 188(1)(a), s 188(1)(b), s 188(1)(c), s 188(3)(b)(iii), s 188(5)(b)(i), s 188(5)(b)(ii)

R v D[1999] QCA 486; 109 A Crim R 314, cited

COUNSEL:

R J Clutterbuck for the applicant

T A Fuller for the respondent

SOLICITORS:

Buckland Criminal Lawyers for the applicant

Director of Public Prosecutions (Queensland) for the respondent

MACKENZIE J: This is an application under s 188(1)(c) and s 188(3)(b)(iii) of the Penalties and Sentences Act1992 (Qld) to reopen a sentence imposed by Dowsett J on 8 October 1996. There has clearly been a long delay in applying for a re-opening, but it is partly explicable by a lengthy delay in disposing of proceedings in the Magistrates Court at Southport in respect of property suspected of being the proceeds of drug offences. Ordinarily, such an application should be made within 28 days of sentence (s 188(5)(b)(i)). Otherwise, an extension of time is required (s 188(5)(b)(ii)).

The application refers to the grounds under s 188(1)(a) and (b), but there is no substance in either of them. The sentence was one that was in accordance with law and could legally be imposed. To succeed, the applicant will have to demonstrate that it was decided on a clear factual error of substance.

The indictment alleged trafficking for a period of over three years and nine months and a variety of related counts. The applicant had acquired chemicals to make amphetamines in significant quantities. He had used force and coercion to recover debts he claimed to be owed in connection with his business. The sentencing judge sentenced on the basis that there were a large number of individual transactions. The applicant had operated a network of distributors of drugs and the trafficking included cocaine and heroin. The applicant was found to be in possession of pure weights of 26 grams of heroin, 14 grams of cocaine and nine grams of methylamphetamine.

Records he kept…

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. Jacobs

Details

AGLC: R v Jacobs [2007] QSC 235
Case: [2007] QSC 235
Decision Date: 7 September 2007

CaseChat Overview and Summary

In the case of R v. Jacobs, the applicant was sentenced to 14 years imprisonment for trafficking amphetamines. The applicant sought to appeal the sentence, arguing that the sentencing judge had not been made aware of certain information relating to complaints against the police in respect of the confiscation of money. Specifically, the applicant claimed that the sentencing judge had made reference to an imprecise amount of money found with the applicant's property, and that this may have affected the sentence. The applicant sought an extension of time in order to bring the application.

The legal issue before the court was whether the applicant had established a clear factual error of substance that would justify granting an extension of time to bring the application. The court considered the principles relating to extensions of time in criminal appeals and the factors to be taken into account in determining whether such an extension should be granted. The court also considered the large delay that existed between the date of the sentence and the application for an extension of time.

The court found that the applicant had not established a clear factual error of substance. The court held that the sentencing judge had made reference to an imprecise amount of money found with the applicant's property, but this did not amount to a clear factual error of substance. The court also found that the large delay between the date of the sentence and the application for an extension of time was a relevant factor to be taken into account, and that this weighed against granting an extension of time. The court therefore refused the application for an extension of time and dismissed the application.

The court ordered that the application for an extension of time be refused and that the application be dismissed.

Orders

Orders of the court

1. Extension of time within which to apply refused

2. Application dismissed

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Jacobs [2007] QSC 235
PARTIES:	THE QUEEN v RAYMOND MARK JACOBS (applicant)
FILE NO/S:	381/96
DIVISION:	Trial Division
PROCEEDING:	Application to reopen sentence
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	7 September 2007
DELIVERED AT:	Brisbane
HEARING DATE:	27 August 2007
JUDGE:	Mackenzie J
ORDER:	1. Extension of time within which to apply refused 2. Application dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – FACTUAL BASIS FOR SENTENCE – where applicant sentenced for trafficking amphetamines to 14 years imprisonment – where applicant submits that information was not available to the sentencing judge concerning complaints against the police in relation to confiscation of money – where sentencing judge made reference to an imprecise amount of money being found with property of the applicant – where large delay exists between sentence and application – whether a clear factual error of substance has been established to justify granting an extension of time in order to bring the application Penalties and Sentences Act 1992 (Qld) s 188(1)(a), s 188(1)(b), s 188(1)(c), s 188(3)(b)(iii), s 188(5)(b)(i), s 188(5)(b)(ii) R v D[1999] QCA 486; 109 A Crim R 314, cited
COUNSEL:	R J Clutterbuck for the applicant T A Fuller for the respondent
SOLICITORS:	Buckland Criminal Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent