SUPREME COURT OF QUEENSLAND
CITATION:
R v Johnston [2008] QCA 291
PARTIES:
R
v
JOHNSTON, Alan David
(applicant)FILE NO/S:
CA No 52 of 2008
DC No 404 of 2007DIVISION:
Court of Appeal
PROCEEDING:
Application for Extension (Sentence)
ORIGINATING COURT:
District Court at Southport
DELIVERED ON:
26 September 2008
DELIVERED AT:
Brisbane
HEARING DATE:
19 September 2008
JUDGES:
Keane and Fraser JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
The application for an extension of time within which to apply for leave to appeal refused
CATCHWORDS:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – MISCELLANEOUS PRACTICE CASES – where the applicant was convicted of unlawful stalking with violence and sentenced to a term of imprisonment – where the learned trial judge also made a restraining order in respect of the applicant’s de facto wife – where the applicant filed an application for an extension of time within which to apply for leave to appeal against sentence – where it was clear that the applicant sought only to challenge the restraining order – where the applicant could have applied to the District Court to have the restraining order revoked or modified instead of making the application for an extension of time to this Court – whether the making of the restraining order formed part of the sentence imposed – whether, when the application was treated as an application under s 118(3) of the District Court of Queensland Act 1967 (Qld), the merits of the application warranted the grant of an extension of time within which to apply for leave to appeal
Criminal Code 1899 (Qld), s 359F, s 668D
District Court of Queensland Act 1967 (Qld), s 118Pickering v McArthur[2005] QCA 294, cited
R v Blow [1963] QWN 1, cited
R v Harman [1959] 2 QB 134, cited
R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, appliedCOUNSEL:
The applicant appeared on his own behalf
M B Lehane for the respondentSOLICITORS:
The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
KEANE JA: I have had the advantage of reading a draft of the reasons for judgment prepared by Fraser JA. I agree with his Honour’s reasons and with the order proposed by his Honour.
FRASER JA
: On 14 December 2007 the applicant was convicted on his plea of guilty of an offence of unlawful stalking with violence between 1 January and
3 March 2007. On 18 January 2008 the applicant was sentenced in the District Court to two and a half years imprisonment with a parole release date of 1 February 2008 (representing 11 months in custody, with 322 days of pre-sentence custody declared as time served).
The sentencing judge also made a restraining order in respect of the two complainants and their immediate family members and a separate restraining order in respect of a witness, the applicant’s de facto…
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- R v Johnston [2008] QCA 291
- Case
- [2008] QCA 291
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the restraining order was part of the sentence and if so, whether the applicant could challenge it through the appeal process. The court had to assess if the applicant's application for an extension of time was valid and whether it was appropriate to treat the application as one under section 118(3) of the Act. The court also considered the alternative procedural avenues available to the applicant, such as applying directly to the District Court for the modification or revocation of the restraining order.
The court reasoned that the restraining order formed part of the sentence imposed by the trial judge. Consequently, the applicant's challenge to the restraining order was effectively a challenge to the sentence. The court found that the applicant had failed to demonstrate any exceptional circumstances warranting an extension of time to appeal the sentence. Furthermore, the court noted that the applicant could have directly sought modification of the restraining order from the District Court, which would have been a more appropriate course of action. Therefore, the application for an extension of time was refused.
Orders
Orders of the court
The application for an extension of time within which to apply for leave to appeal 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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