R v Lacey - [2016] QCA 25

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lacey [2016] QCA 25

PARTIES:

R
v
LACEY, Jade Michael
(applicant)

FILE NO/S:

CA No 267 of 2015
SC No 308 of 2011
SC No 123 of 2013
SC No 124 of 2013
SC No 127 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 19 March 2013

DELIVERED ON:

12 February 2016

DELIVERED AT:

Brisbane

HEARING DATE:

2 February 2016

JUDGES:

Holmes CJ and Morrison and Philip McMurdo JJA
Separate reasons of judgment for each member of the Court, each concurring as to the order made

ORDER:

Applications for extension of time and leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – POWERS OF APPELLATE COURT – GENERALLY – where the applicant was sentenced on seven indictable offences – where the sentences were to be served concurrently but cumulative upon earlier sentences being served – where a previous application for leave to appeal against the subject sentences was refused – where the applicant now argued the learned sentencing judge acted upon a factual error – where the court has no jurisdiction to grant leave to appeal on a subsequent application, even if a new ground of appeal is adduced – whether the court has jurisdiction to hear the fresh application

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was sentenced for offences committed in April and May 2007 – where the applicant was declared to be a serious violent offender for one offence of torture – where the applicant was subsequently sentenced on seven indictable offences – where the sentences were to be served concurrently but cumulative upon the earlier sentences being served – where the applicant argued the learned sentencing judge proceeded upon a factual error, namely that all of the earlier sentences were declared serious violent offences – whether the learned sentencing judge proceeded upon a factual error

Penalties and Sentences Act 1992 (Qld), s 188

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, applied
R v Lacey[2013] QCA 318, considered
R v Upson (No 2) (2013) 229 A Crim R 275; [2013] QCA 149, applied

COUNSEL:

The applicant appeared on his own behalf
D L Meredith for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

HOLMES CJ: I agree with the reasons of Philip McMurdo JA and the order he proposes.
MORRISON JA: I have read the reasons of Philip McMurdo JA and agree with those reasons and the order his Honour proposes.
PHILIP McMURDO JA: This is a second attempt to appeal against sentences imposed in 2013 for offences of armed robbery in company with actual violence. For each of these three offences, the applicant was sentenced to a term of two years’…

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 Lacey

Details

AGLC: R v Lacey [2016] QCA 25
Case: [2016] QCA 25
Decision Date: 12 February 2016

CaseChat Overview and Summary

In the matter of R v Lacey, the applicant sought to appeal against the sentences imposed upon him for seven indictable offences. The sentences were to be served concurrently but cumulative upon earlier sentences being served. The applicant had previously made an unsuccessful application for leave to appeal against the sentences and now sought to do so again, arguing that the sentencing judge had made a factual error in his assessment. The issue before the court was whether it had jurisdiction to hear the fresh application, even if a new ground of appeal was presented.

The court held that it did not have jurisdiction to grant leave to appeal on a subsequent application, even if a new ground of appeal was adduced. The court found that the applicant's argument that the sentencing judge proceeded upon a factual error was not a new ground of appeal, as it was essentially the same argument as had been previously rejected. The court found that the sentencing judge had not made a factual error in his assessment and that the sentences were appropriate.

The court found that it did not have jurisdiction to hear the fresh application and dismissed it. The court also refused the applicant's applications for an extension of time and leave to appeal against the sentence. The court found that the applicant had not demonstrated any exceptional circumstances that warranted an extension of time and that there were no grounds upon which leave to appeal could be granted.

Orders

Orders of the court

Applications for extension of time and leave to appeal against sentence refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Lacey [2016] QCA 25
PARTIES:	R v LACEY, Jade Michael (applicant)
FILE NO/S:	CA No 267 of 2015 SC No 308 of 2011 SC No 123 of 2013 SC No 124 of 2013 SC No 127 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 19 March 2013
DELIVERED ON:	12 February 2016
DELIVERED AT:	Brisbane
HEARING DATE:	2 February 2016
JUDGES:	Holmes CJ and Morrison and Philip McMurdo JJA Separate reasons of judgment for each member of the Court, each concurring as to the order made
ORDER:	Applications for extension of time and leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – POWERS OF APPELLATE COURT – GENERALLY – where the applicant was sentenced on seven indictable offences – where the sentences were to be served concurrently but cumulative upon earlier sentences being served – where a previous application for leave to appeal against the subject sentences was refused – where the applicant now argued the learned sentencing judge acted upon a factual error – where the court has no jurisdiction to grant leave to appeal on a subsequent application, even if a new ground of appeal is adduced – whether the court has jurisdiction to hear the fresh application CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was sentenced for offences committed in April and May 2007 – where the applicant was declared to be a serious violent offender for one offence of torture – where the applicant was subsequently sentenced on seven indictable offences – where the sentences were to be served concurrently but cumulative upon the earlier sentences being served – where the applicant argued the learned sentencing judge proceeded upon a factual error, namely that all of the earlier sentences were declared serious violent offences – whether the learned sentencing judge proceeded upon a factual error Penalties and Sentences Act 1992 (Qld), s 188 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, applied R v Lacey[2013] QCA 318, considered R v Upson (No 2) (2013) 229 A Crim R 275; [2013] QCA 149, applied
COUNSEL:	The applicant appeared on his own behalf D L Meredith for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent