R v Janz - [2008] QCA 55

SUPREME COURT OF QUEENSLAND

CITATION:

R v Janz [2008] QCA 55

PARTIES:

R
v
JANZ, Luke Benjamin
(applicant)

FILE NO/S:

CA No 365 of 2007
SC No 344 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)
Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

14 February 2008

JUDGES:

Holmes and Muir JJA and Mackenzie AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application for extension of time within which to apply for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where applicant sought leave to appeal sentence 13 months out of time – where applicant had cerebral palsy and attributed delay to an inability to act on his own behalf – whether it is in the interests of justice to grant an extension of time

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 – OFFENCES AGAINST THE PERSON – GENRALLY – where applicant sentenced to 10 and a half years imprisonment for grievous bodily harm with intent to do grievous bodily harm – whether sentence manifestly excessive by comparison with the sentence imposed on Schipper in R v Bird and Schipper (2000) 110 A Crim R 394

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 – GENERALLY – where applicant engaged in extravagant and untruthful storytelling, symptomatic of a personality disorder – where no evidence of psychotic disorder or mental illness – where no psychological explanation for offending behaviour – whether sentencing judge had sufficient regard to applicant’s psychological state

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 – GENERALLY – where applicant suffered disabilities due to cerebral palsy – where sentencing judge recognised that imprisonment would be more onerous for the applicant – whether sentencing judge made sufficient allowance for the applicant’s disability

Channon v R (1978) 33 FLR 433; [1978] FCA 16, considered
R v B [2000] 111 A Crim R 302; [2000] QCA 42, distinguished
R v Bird and Schipper (2000) 110 A Crim R 394; [2000] QCA 94, considered
R v Guthrie (2002) 135 A Crim R 292; [2002] QCA 509, cited
R v Irlam; ex parte A-G (Qld) [2002] QCA 235; CA No 157 and 173 of 2002, 28 June 2002,…

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 Janz

Details

AGLC: R v Janz [2008] QCA 55
Case: [2008] QCA 55
Decision Date: 14 March 2008

CaseChat Overview and Summary

The applicant sought leave to appeal his sentence 13 months out of time. The applicant had been convicted of grievous bodily harm with intent and sentenced to 10 and a half years imprisonment. The applicant, who had cerebral palsy, attributed the delay in seeking leave to appeal to his inability to act on his own behalf. The applicant also sought a reduction in sentence, arguing it was manifestly excessive compared to the sentence imposed on Schipper in R v Bird and Schipper. The applicant argued the sentencing judge had not sufficiently regarded his psychological state or the impact of his cerebral palsy.

The court examined the grounds for extending the time limit for appealing the sentence, considering the applicant's disability and its impact on his ability to act promptly. The court also assessed whether the sentence was manifestly excessive by comparing it to similar cases. The court noted the applicant's history of extravagant and untruthful storytelling, indicative of a personality disorder, but found no evidence of a psychotic disorder or mental illness. The court also considered whether the sentencing judge had appropriately accounted for the applicant's disabilities in determining the sentence.

The court found that the delay in seeking leave to appeal was not attributable to the applicant's disability in a way that warranted an extension of time. The court also held that the sentence was not manifestly excessive when compared to similar cases. The court determined that the sentencing judge had appropriately considered the applicant's psychological state and disability. Consequently, the application for an extension of time and the application for a reduction in sentence were both refused.

Orders

Orders of the court

Application for extension of time within which to apply 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 Janz [2008] QCA 55
PARTIES:	R v JANZ, Luke Benjamin (applicant)
FILE NO/S:	CA No 365 of 2007 SC No 344 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence) Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	14 March 2008
DELIVERED AT:	Brisbane
HEARING DATE:	14 February 2008
JUDGES:	Holmes and Muir JJA and Mackenzie AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application for extension of time within which to apply for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where applicant sought leave to appeal sentence 13 months out of time – where applicant had cerebral palsy and attributed delay to an inability to act on his own behalf – whether it is in the interests of justice to grant an extension of time 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 – OFFENCES AGAINST THE PERSON – GENRALLY – where applicant sentenced to 10 and a half years imprisonment for grievous bodily harm with intent to do grievous bodily harm – whether sentence manifestly excessive by comparison with the sentence imposed on Schipper in R v Bird and Schipper (2000) 110 A Crim R 394 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 – GENERALLY – where applicant engaged in extravagant and untruthful storytelling, symptomatic of a personality disorder – where no evidence of psychotic disorder or mental illness – where no psychological explanation for offending behaviour – whether sentencing judge had sufficient regard to applicant’s psychological state 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 – GENERALLY – where applicant suffered disabilities due to cerebral palsy – where sentencing judge recognised that imprisonment would be more onerous for the applicant – whether sentencing judge made sufficient allowance for the applicant’s disability Channon v R (1978) 33 FLR 433; [1978] FCA 16, considered R v B [2000] 111 A Crim R 302; [2000] QCA 42, distinguished R v Bird and Schipper (2000) 110 A Crim R 394; [2000] QCA 94, considered R v Guthrie (2002) 135 A Crim R 292; [2002] QCA 509, cited R v Irlam; ex parte A-G (Qld) [2002] QCA 235; CA No 157 and 173 of 2002, 28 June 2002,…