R v MAH - [2005] QCA 13

SUPREME COURT OF QUEENSLAND

CITATION:

R v MAH [2005] QCA 13

PARTIES:

R
v
MAH
(applicant)

FILE NO/S:

CA No 223 of 2004
DC No 77 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED EX TEMPORE ON:

9 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2005

JUDGES:

de Jersey CJ, McPherson JA and Chesterman J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

1. Application for adjournment refused

2. Application for an extension of time to seek leave to appeal refused

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – ADJOURNMENT – GROUNDS FOR GRANTING OR REFUSING – where applicant had always represented himself – where applicant had ample time to prepare case and had done so comprehensibly in writing – where applicant displayed an appreciation of the points he wished to argue – whether unrepresented applicant should be granted an adjournment to research the process of a criminal appeal

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – PLEA OF GUILTY, CONTRITION AND CO-OPERATION – where applicant gave early plea and cooperated with police – where applicant found guilty of committing serious sexual offences – whether sentence should be reduced

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – REMISSION, PAROLE AND PRISONER CLASSIFICATION – OFFENCE COMMITTED WHILE ON BAIL OR PROBATION AND EFFECT OF BREACH OF PROBATION – where applicant claims Community Corrections Board would not likely respect court’s recommendation as to parole – where applicant had already breached a suspended sentence – whether overall term of imprisonment should be suspended rather than applicant being left with a recommendation as to parole

COUNSEL:

The applicant appeared on his own behalf
S G Bain for the respondent

SOLICITORS:

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

THE CHIEF JUSTICE: On the 24th of June 2004, the applicant was sentenced to six years' imprisonment with a recommendation for post-prison community based release after two years on a count of maintaining a sexual relationship with a child under 16 years of age with the aggravating circumstances that, in the course of the relationship, he raped her and permitted himself to be dealt with indecently at a time when she was under 12 years of age and in his care. He seeks leave to appeal. He pleaded guilty to that offence of maintaining and to the specific offences on which the maintaining count was based.

On the 18th of August 2004, the applicant filed an application for extension of time within which to seek leave to appeal against sentence. The time for applying for leave to appeal against sentence expired on the 22nd of…

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 MAH

Details

AGLC: R v MAH [2005] QCA 13
Case: [2005] QCA 13
Decision Date: 9 February 2005

CaseChat Overview and Summary

The case of R v MAH involved the applicant who had always chosen to represent himself in criminal proceedings. The dispute centered on the refusal of an adjournment to allow the applicant to research the process of a criminal appeal. Additionally, the applicant sought a reduction in his sentence and an extension of time to appeal. The case was heard in the relevant court where these issues were determined.

The primary legal issues the court addressed were whether the unrepresented applicant should be granted an adjournment to research the process of a criminal appeal and if the sentence should be reduced. The court also considered whether the overall term of imprisonment should be suspended due to the applicant's prior breach of a suspended sentence and concerns about the Community Corrections Board's adherence to parole recommendations.

The court found that the applicant had ample time to prepare his case and had done so comprehensively in writing. The applicant demonstrated an understanding of the points he intended to argue. Despite this, the court refused the application for an adjournment, reasoning that the applicant had been given sufficient opportunity to prepare and that further delay would not serve the interests of justice. Regarding the sentence, the court noted the applicant's early plea and cooperation with the police but found that the seriousness of the offences warranted the imposition of a custodial sentence. The court also rejected the application for an extension of time to seek leave to appeal.

The court's final orders were that the application for an adjournment was refused, and the application for an extension of time to seek leave to appeal was also refused.

Orders

Orders of the court

1. Application for adjournment refused

2. Application for an extension of time to seek leave to appeal 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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v MAH [2005] QCA 13
PARTIES:	R v MAH (applicant)
FILE NO/S:	CA No 223 of 2004 DC No 77 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED EX TEMPORE ON:	9 February 2005
DELIVERED AT:	Brisbane
HEARING DATE:	9 February 2005
JUDGES:	de Jersey CJ, McPherson JA and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	1. Application for adjournment refused 2. Application for an extension of time to seek leave to appeal refused
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – ADJOURNMENT – GROUNDS FOR GRANTING OR REFUSING – where applicant had always represented himself – where applicant had ample time to prepare case and had done so comprehensibly in writing – where applicant displayed an appreciation of the points he wished to argue – whether unrepresented applicant should be granted an adjournment to research the process of a criminal appeal CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – PLEA OF GUILTY, CONTRITION AND CO-OPERATION – where applicant gave early plea and cooperated with police – where applicant found guilty of committing serious sexual offences – whether sentence should be reduced CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – REMISSION, PAROLE AND PRISONER CLASSIFICATION – OFFENCE COMMITTED WHILE ON BAIL OR PROBATION AND EFFECT OF BREACH OF PROBATION – where applicant claims Community Corrections Board would not likely respect court’s recommendation as to parole – where applicant had already breached a suspended sentence – whether overall term of imprisonment should be suspended rather than applicant being left with a recommendation as to parole
COUNSEL:	The applicant appeared on his own behalf S G Bain for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent