R v Karger - [1999] QCA 433

IN THE COURT OF APPEAL [1999] QCA 433
SUPREME COURT OF QUEENSLAND
CA No 162 of 1999
Brisbane
[R v Karger]
THE QUEEN
v
COLIN JOHN KARGER

(Applicant) Appellant

McPherson JA
Byrne J
White J

Judgment delivered 19 October 1999
Judgment of the Court
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED TO THE EXTENT OF SETTING ASIDE THE RECOMMENDATION FOR PAROLE AND, IN LIEU THEREOF, ORDERING THAT THE APPLICANT BE ELIGIBLE FOR PAROLE ON 6 MAY 2001.

CATCHWORDS:

CRIMINAL LAW - APPEAL AGAINST SENTENCE - whether parole recommendation makes sentences manifestly excessive - whether endorsement accorded with the judge’s intention - whether judge entitled to select a date later than would otherwise apply under s 166(1) Corrective Services Act 1988
R v Clemens CA No 404 of 1997, 17 April 1998
R v McCormick; ex parte Attorney-General of Queensland
CA No 205 of 1999, 27 August 1999; [1999] QCA 354
R v Pepper & Cornwell CA Nos 366 and 367 of 1998, 2
March 1999; [1999] QCA 47
Bail Act 1980 (Qld), s 33(4)(C)
Corrective Services Act 1988 (Qld), s 122(2), s 166(1)
Penalties and Sentences Act 1992 (Qld), s 157(3)
Counsel: Ms K McGinness for the applicant/appellant
Mr R G Martin for the respondent
Solicitors: Legal Aid Queensland for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent
Hearing Date: 29 July 1999

THE COURT: On 19 April this year, the applicant was convicted on his pleas of guilty to 10 supplies of dangerous drugs. Nine of the offences related to heroin; the other concerned methylamphetamine. Concurrent sentences of three years’ imprisonment were imposed. There was an accompanying recommendation that the applicant be eligible for parole after serving 18 months of the sentences. The sentences were ordered to be served cumulatively upon other sentences the applicant was then serving.
The applicant, who was aged 29 when the offences were committed, sold the drugs to an undercover police officer during about six weeks. $3,285 changed hands. The total quantity of pure heroin involved was 1.143 grams. One gram of methylamphetamine was supplied. When the offences were committed, the applicant was on parole for other offences. He had prior convictions for a large number of offences, including old drug offences.
Appropriately enough in the circumstances, it is not suggested that the head sentence is excessive; nor is it said that the judge erred in making the sentences cumulative upon the sentences the applicant was serving when dealt with: cf R v Clemens CA 404 of 1997, 17 April 1998. Instead, the case concerns the parole recommendation. On account of it, the sentences are said to be manifestly excessive. To understand the submission, it is necessary to consider the applicant’s imprisonment history.
On 12 May 1995, the applicant was sentenced to imprisonment for offences of stealing and false pretences. Two sets of two year sentences were ordered to be served cumulatively. A recommendation was made for parole eligibility after 18 months of those four years had been…

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 Karger

Details

AGLC: R v Karger [1999] QCA 433
Case: [1999] QCA 433
Decision Date: 19 October 1999

CaseChat Overview and Summary

The case of R v Karger involved an appeal against sentence, where the applicant challenged the parole recommendation made by the sentencing judge. The dispute was heard and determined by the court of appeal. The applicant argued that the parole recommendation was manifestly excessive and did not accord with the judge's intention. Additionally, the applicant contested whether the judge was entitled to select a date for parole eligibility later than what would otherwise apply under section 166(1) of the Corrective Services Act 1988.

The legal issues before the court were whether the parole recommendation made by the sentencing judge was manifestly excessive, whether the endorsement was in accordance with the judge's intention, and whether the judge had the authority to select a date for parole eligibility later than what was prescribed by the statute. The court was required to consider these issues to determine the appropriate course of action in light of the applicant's appeal.

The court found that the parole recommendation was indeed manifestly excessive and did not align with the sentencing judge's intention. It was held that the endorsement did not reflect the true intentions of the judge, and therefore, it was not in accordance with the judge's wishes. Furthermore, the court determined that the sentencing judge was not entitled to select a date for parole eligibility later than what was provided for under section 166(1) of the Corrective Services Act 1988. The court set aside the parole recommendation and, in its place, ordered that the applicant be eligible for parole on 6 May 2001.

In light of the findings and reasoning, the application for leave to appeal against sentence was granted, and the appeal was allowed to the extent of setting aside the parole recommendation and ordering the applicant's eligibility for parole on 6 May 2001.

Orders

Orders of the court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED TO THE EXTENT OF SETTING ASIDE THE RECOMMENDATION FOR PAROLE AND, IN LIEU THEREOF, ORDERING THAT THE APPLICANT BE ELIGIBLE FOR PAROLE ON 6 MAY 2001.

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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IN THE COURT OF APPEAL	[1999] QCA 433
SUPREME COURT OF QUEENSLAND

CATCHWORDS:	CRIMINAL LAW - APPEAL AGAINST SENTENCE - whether parole recommendation makes sentences manifestly excessive - whether endorsement accorded with the judge’s intention - whether judge entitled to select a date later than would otherwise apply under s 166(1) Corrective Services Act 1988
*R v Clemens* CA No 404 of 1997, 17 April 1998 *R v McCormick; ex parte Attorney-General of Queensland* CA No 205 of 1999, 27 August 1999; [1999] QCA 354 *R v Pepper & Cornwell* CA Nos 366 and 367 of 1998, 2 March 1999; [1999] QCA 47
*Bail Act* 1980 (Qld), s 33(4)(C) *Corrective Services Act* 1988 (Qld), s 122(2), s 166(1) *Penalties and Sentences Act* 1992 (Qld), s 157(3)
Counsel:	Ms K McGinness for the applicant/appellant Mr R G Martin for the respondent
Solicitors:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	29 July 1999