R v Kitson

Case [2008] QCA 86


SUPREME COURT OF QUEENSLAND

CITATION:

R v Kitson [2008] QCA 86

PARTIES:

R
v
KITSON, Thomas Edward
(applicant/appellant)

FILE NO/S:

CA No 370 of 2007
SC No 726 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 April 2008

DELIVERED AT:

Brisbane

HEARING DATE:

1 April 2008

JUDGES:

Fraser JA, Fryberg J and Lyons J
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 allowed

2.    Appeal allowed

3.    Sentence is set aside and in lieu thereof order that the applicant be imprisoned for 15 months and fix the parole release date as 29 May 2008

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 – where the applicant was convicted on his plea of guilty of one count of unlawful possession of the dangerous drug methylamphetamine, one count of unlawful possession of the dangerous drug methadone and one count of possession of a  mobile phone for use in connection with the commission of the crime of supplying a dangerous drug – where the applicant was sentenced to imprisonment for a period of 12 months – where the trial judge ordered that the applicant be released on parole after serving nine months imprisonment

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – where the applicant’s parole release date was significantly past the halfway point of his head sentence – whether the trial judge erred in not giving reasons explaining the process underlying his decision to set the parole release date significantly past the halfway point

Corrective Services Act 2006 (Qld), s 199(1)
Penalties and Sentences Act 1992 (Qld), s 160B(3), s 160G(1)

Bawden v ACI Operations Pty Ltd[2003] QCA 293, cited
Camden & Anor v McKenzie & Ors
[2007] QCA 136, cited
Crystal Dawn Pty Ltd & Taylor v Redruth Pty Ltd
[1998] QCA 373, cited
In re Hamilton; In re Forrest [1981] AC 1038, cited
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited
R v Anable[2005] QCA 208, discussed
R v Armstrong[2005] QCA 116, discussed
R v Assurson
[2007] QCA 273, considered
R v Cunningham[2005] QCA 321, cited
R v McDougall & Collas[2006] QCA 365, considered
R v Norton[2007] QCA 320, cited

COUNSEL:

D C Shepherd for the applicant
M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA: On 29…

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Details
AGLC
R v Kitson [2008] QCA 86
Case
[2008] QCA 86
Decision Date

CaseChat Overview and Summary

The case of R v Kitson involves the appellant who pleaded guilty to various drug-related offences, including possession of dangerous drugs and possession of a mobile phone for use in connection with supplying those drugs. The appellant was sentenced to imprisonment for a period of 12 months, with a parole release date set nine months into his sentence. The appellant sought to appeal the sentence, arguing that the trial judge erred in setting his parole release date without providing adequate reasons, particularly as it was significantly past the halfway point of his head sentence.

The primary legal issue in the appeal was whether the trial judge erred in not giving reasons explaining the process underlying his decision to set the parole release date significantly past the halfway point of the appellant's head sentence. The court considered whether this omission constituted an error of law and whether it affected the overall fairness and appropriateness of the sentence imposed.

The court found that the trial judge's failure to provide reasons for setting the parole release date significantly past the halfway point of the appellant's head sentence constituted an error of law. The court concluded that this error affected the fairness and appropriateness of the sentence, as it did not allow for a proper assessment of the reasons behind the parole release date. Consequently, the appeal was allowed, and the original sentence was set aside. The court ordered that the appellant be imprisoned for 15 months, with a specific parole release date of 29 May 2008.

Orders

Orders of the court

1. Application for leave to appeal against sentence allowed

2. Appeal allowed

3. Sentence is set aside and in lieu thereof order that the applicant be imprisoned for 15 months and fix the parole release date as 29 May 2008

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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