R v Jamieson - [2005] QCA 331

SUPREME COURT OF QUEENSLAND

CITATION:

R v Jamieson [2005] QCA 331

PARTIES:

R
v
JAMIESON, Michael James
(applicant/appellant)

FILE NO/S:

CA No 143 of 2005
SC No 559 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

2 September 2005

JUDGES:

McMurdo P, Jerrard and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for leave to appeal against sentence       granted
2.    Appeal allowed
3.    Set aside the sentence on each of counts 1 and 2
4.    On count 1 substitute instead a sentence of three       years imprisonment to run from 4 May 2005, that       sentence to be suspended after the applicant has       served six months of it, for an operational period of       three years
5. On count 2 order that the applicant be sentenced to six months imprisonment, such term to commence on 4 May 2005, and then be released with his consent upon probation for three years, that probation order to contain the requirements specified in s 93 of the Penalties and Sentences Act 1992 (Qld)
6.    Applicant’s legal representatives to explain the       matters in s 95 of that Act to the applicant in a way       complying with s 95(2) thereof

CATCHWORDS:

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 GRANTED – applicant pleaded guilty to possession of heroin with a circumstance of aggravation and possession of associated implements – concurrent sentences of five years and 12 months imprisonment imposed – recommendation for post-prison community based release after 15 months – applicant arrested in March 1998 for drug offences but not sentenced until May 2005 – delay partly explained by applicant absconding whilst on bail for drug offences – at time of arrest applicant still on parole as part of a sentence for armed robbery in 1991 – applicant had previously escaped from jail while serving armed robbery sentence and was later captured – sentencing delay partly explained by applicant’s application for a pardon in respect of the 1991 armed robbery offence after his co-accused told the Director of Public Prosecutions that the applicant was not involved in that robbery – overall effect of sentencing meant applicant would serve 13.5 years of imprisonment with a non-parole period of 10.25 years for one count of armed robbery, one count of escaping and one count of heroin possession – applicant has tested negative to drugs since 2001 and has two children – applicant also currently on remand for armed robberies allegedly committed in 1993 and 2001 – these charges not listed for trial until 2006 – whether in these particular circumstances the sentences imposed in May 2005 were manifestly excessive

Corrective Services Act 1988 (Qld) (repealed), s 190
Corrective Services Act 2000 (Qld), s 75, s 152

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 Jamieson

Details

AGLC: R v Jamieson [2005] QCA 331
Case: [2005] QCA 331
Decision Date: 9 September 2005

CaseChat Overview and Summary

The applicant, Jamieson, appealed against the sentences imposed by the District Court of Queensland in May 2005. Jamieson had pleaded guilty to possession of heroin with a circumstance of aggravation and possession of associated implements. The court imposed concurrent sentences of five years and 12 months imprisonment, with a recommendation for post-prison community-based release after 15 months. Jamieson's arrest in March 1998 for drug offences was followed by a lengthy delay in sentencing, partly due to Jamieson absconding while on bail for drug offences. At the time of his arrest, Jamieson was still on parole for an armed robbery sentence from 1991, a sentence that had itself been subject to a delay because Jamieson had previously escaped from jail while serving it. The sentencing delay was also partly explained by Jamieson's application for a pardon in respect of the 1991 armed robbery offence, following a statement by his co-accused that Jamieson was not involved in that offence. The cumulative effect of these sentences meant Jamieson would serve 13.5 years of imprisonment, with a non-parole period of 10.25 years. Jamieson had tested negative for drugs since 2001 and had two children. He was also currently on remand for armed robberies allegedly committed in 1993 and 2001, with the charges not listed for trial until 2006. The appeal challenged the severity of the sentences, arguing they were manifestly excessive given the circumstances.

The court considered whether the sentences were manifestly excessive, taking into account the lengthy delay between arrest and sentencing, and the applicant's history of absconding and escaping from custody. The court found that the sentencing delay had significantly impacted the applicant's life, leading to a lengthy period of imprisonment. It was noted that Jamieson had been drug-free since 2001 and had young children, which were mitigating factors. The court also considered the impact of the applicant's current remand status for other alleged offences. The court held that the sentences imposed were manifestly excessive, taking into account all the circumstances, and granted leave to appeal against the sentence. The appeal was allowed, and the sentences were set aside. The court substituted a sentence of three years imprisonment on count 1, to be suspended after six months, and a sentence of six months imprisonment on count 2, to be released on probation with specified requirements.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed

3. Set aside the sentence on each of counts 1 and 2

4. On count 1 substitute instead a sentence of three years imprisonment to run from 4 May 2005, that sentence to be suspended after the applicant has served six months of it, for an operational period of three years

5. On count 2 order that the applicant be sentenced to six months imprisonment, such term to commence on 4 May 2005, and then be released with his consent upon probation for three years, that probation order to contain the requirements specified in s 93 of the Penalties and Sentences Act 1992 (Qld)

6. Applicant’s legal representatives to explain the matters in s 95 of that Act to the applicant in a way complying with s 95(2) thereof

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 Jamieson [2005] QCA 331
PARTIES:	R v JAMIESON, Michael James (applicant/appellant)
FILE NO/S:	CA No 143 of 2005 SC No 559 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	9 September 2005
DELIVERED AT:	Brisbane
HEARING DATE:	2 September 2005
JUDGES:	McMurdo P, Jerrard and Keane JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted 2. Appeal allowed 3. Set aside the sentence on each of counts 1 and 2 4. On count 1 substitute instead a sentence of three years imprisonment to run from 4 May 2005, that sentence to be suspended after the applicant has served six months of it, for an operational period of three years 5. On count 2 order that the applicant be sentenced to six months imprisonment, such term to commence on 4 May 2005, and then be released with his consent upon probation for three years, that probation order to contain the requirements specified in s 93 of the Penalties and Sentences Act 1992 (Qld) 6. Applicant’s legal representatives to explain the matters in s 95 of that Act to the applicant in a way complying with s 95(2) thereof
CATCHWORDS:	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 GRANTED – applicant pleaded guilty to possession of heroin with a circumstance of aggravation and possession of associated implements – concurrent sentences of five years and 12 months imprisonment imposed – recommendation for post-prison community based release after 15 months – applicant arrested in March 1998 for drug offences but not sentenced until May 2005 – delay partly explained by applicant absconding whilst on bail for drug offences – at time of arrest applicant still on parole as part of a sentence for armed robbery in 1991 – applicant had previously escaped from jail while serving armed robbery sentence and was later captured – sentencing delay partly explained by applicant’s application for a pardon in respect of the 1991 armed robbery offence after his co-accused told the Director of Public Prosecutions that the applicant was not involved in that robbery – overall effect of sentencing meant applicant would serve 13.5 years of imprisonment with a non-parole period of 10.25 years for one count of armed robbery, one count of escaping and one count of heroin possession – applicant has tested negative to drugs since 2001 and has two children – applicant also currently on remand for armed robberies allegedly committed in 1993 and 2001 – these charges not listed for trial until 2006 – whether in these particular circumstances the sentences imposed in May 2005 were manifestly excessive Corrective Services Act 1988 (Qld) (repealed), s 190 Corrective Services Act 2000 (Qld), s 75, s 152