R v Jensen - [2000] QCA 38

[2000] QCA 38

COURT OF APPEAL

McMURDO P
PINCUS JA
WILLIAMS J

CA No 337 of 1999

THE QUEEN

JENSEN, Michael Stephen Applicant

BRISBANE

DATE 23/02/2000

JUDGMENT

THE PRESIDENT: Mr Justice Pincus will deliver his reasons first.

PINCUS JA: There is before us an application for extension of time within which to apply for leave to appeal against sentence.

The applicant came before the late Acting Judge Copley QC on 7 July 1995 and then was dealt with in this Court on 11 June 1996, the reference being CA 307 of 1995. This Court's judgment was given on an appeal by the Attorney-General against sentences imposed by His Honour Acting Judge Copley QC, the applicant having been convicted following pleas of guilty to one count of rape and 13 counts of indecent dealing with circumstances of aggravation.

The learned primary Judge had sentenced the applicant to five years' imprisonment for the rape with a recommendation of eligibility for consideration for parole after two years and that was raised in this Court to 11 years with a recommendation of eligibility for parole on 29 August 1998.

We were informed today that the applicant has, in fact, applied for parole but has not yet been granted it. The sentences I have mentioned were concurrent with sentences totalling 10 years from 29 August 1990 imposed in Western Australia for offences unrelated to those presently in question. The sentences imposed in the District Court did not effectively add anything to the terms of imprisonment imposed in Western Australia.

It is first necessary to consider this Court's jurisdiction. In Pettigrew [1997] 1 Qd R 601, it was held that this Court has jurisdiction to alter an order made on an application for leave to appeal against sentence where the first Court has proceeded on an indisputably erroneous basis. In that case, the reason for the error was that the Court was misinformed as to the effective total sentence being served in respect of all sentences. Shortly after Pettigrew's case was decided there was enacted the Criminal Law Amendment Act 1997 which replaced the former section 188 of the Penalties and Sentences Act 1992, permitting this Court to reopen an appeal which has resulted in the imposition of a sentence decided on a clear factual error of substance. The specific power of reopening where this Court has imposed a sentence on the basis of factual error must now be our guide, and in such cases we should not reopen unless the factual error is clear and is one of substance. It has been drawn to my attention that there is a useful discussion of the effect of section 188 in its present form in the decision of this Court in Davis [1999] QCA 486 decided on 24 November 1999 and that is to be found in the reasons of the President, Justice Thomas and Justice Williams.

In my opinion the onus must be upon the applicant for reopening to prove a clear factual error, rather…

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 Jensen

Details

AGLC: R v Jensen [2000] QCA 38
Case: [2000] QCA 38
Decision Date: 23/02/2000

CaseChat Overview and Summary

In the case of R v Jensen, the applicant sought an extension of time to apply for leave to appeal against his sentence. The applicant was convicted on one count of rape and 13 counts of indecent dealing with circumstances of aggravation and was sentenced to 11 years imprisonment with a recommendation for eligibility for parole after two years. The applicant sought an extension of time to argue that evidence presented to the court was fabricated and that a report prepared by a community correctional officer contained untrue statements. The Court of Appeal considered the application and determined whether there was a clear factual error that warranted reopening the sentence. The Court found that the applicant had not established a clear factual error of substance and refused the application for an extension of time.

The legal issues before the Court of Appeal were whether there was a clear factual error of substance warranting reopening of the sentence and whether the applicant had established such an error. The Court examined the evidence presented by the applicant and considered whether the sentence was based on a factual error. The Court found that the applicant had not established a clear factual error of substance and that the sentence was not based on a factual error.

The Court of Appeal held that the application for an extension of time should be refused as the applicant had not established a clear factual error of substance. The Court found that the evidence presented by the applicant was not sufficient to warrant reopening the sentence. The Court emphasised that the onus was on the applicant to prove a clear factual error and that the applicant had not met this burden. The Court also found that the applicant's complaints about the conduct of his counsel were not relevant to the application for an extension of time.

Orders