R v Matasaru - [2004] QCA 404

SUPREME COURT OF QUEENSLAND

CITATION:

R v Matasaru [2004] QCA 404

PARTIES:

R
v
MATASARU, Constantine
(appellant)

FILE NO/S:

CA No 168 of 2004
SC No 49 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against dismissal of application to reopen sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2004

JUDGES:

McPherson and Jerrard JJA and White J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – OTHER MATTERS – QUEENSLAND – where continuing offence constituted by a course of conduct committed partly before and partly after the commencement of Part 9A Penalties and Sentences Act 1992 (Qld) – where declaration that applicant convicted of a serious violent offence made pursuant to Part 9A – whether Part 9A applies to offence

Acts Interpretation Act 1954 (Qld), s 20C(3)
Criminal Code 1899 (Qld), s 11(2), s 668
Corrective Services Act 2000 (Qld), s 135(2)(c)
Penalties and Sentences Act 1992 (Qld), Part 9A, s 188

R v Alexanderson & Ors [2001] QCA 400; CA No 155 of 2001, 24 September 2001, cited
R v Corrigan [1994] 2 Qd R 415, cited
R v H [2001] QCA 167; CA No 40 of 2001, 1 May 2001, applied
R v Ianculescu [1999] QCA 429; [2000] 2 Qd R 521, applied
R v Mason and Saunders [1998] 2 Qd R 186, cited
R v Maxfield [2000] QCA 320; [2002] 1 Qd R 417, cited

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

McPHERSON JA: I agree with the reasons of Jerrard JA and with his Honour’s conclusion.

The appeal must be dismissed.

JERRARD JA: For Mr Matasaru to succeed in this appeal it will be necessary for the court to conclude that its earlier decisions in R v Ianculescu [2000] 2 Qd R 521, and R v H [2001] QCA 167, which followed it, were wrong in law and should be overruled. Alternatively, he has to persuade the court that he should be permitted to set aside certain of the pleas of guilty entered by him in 1998, although (as a self representing litigant) he has not put his appeal in either of those ways.

On 30 November 1998 Mr Matasaru pleaded guilty to 10 counts of having supplied heroin to others, one count of possession of heroin in a quantity exceeding 200g, one count of possessing a set of scales used in connection with unlawfully supplying a dangerous drug, one count of receiving a quantity of sewing machines knowing it to have been obtained from trafficking a dangerous drug, and one count of defrauding a Commonwealth department. On that date he pleaded not guilty to a charge of carrying on…

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 Matasaru

Details

AGLC: R v Matasaru [2004] QCA 404
Case: [2004] QCA 404
Decision Date: 29 October 2004

CaseChat Overview and Summary

The case of R v Matasaru involved the appellant, who was convicted of a continuing offence that comprised a course of conduct committed partly before and partly after the commencement of Part 9A of the Penalties and Sentences Act 1992 (Qld). The appellant was subsequently declared to have committed a serious violent offence in accordance with the provisions of Part 9A. The appellant challenged the applicability of Part 9A to the offence, arguing that the provisions did not apply to offences that were partly committed before the commencement of Part 9A. The appeal was dismissed by the court.

The primary legal issue before the court was whether Part 9A of the Penalties and Sentences Act 1992 (Qld) applies to a continuing offence that was partly committed before and partly after the commencement of the Act. The court needed to determine whether the provisions of Part 9A could apply to an offence that was not fully completed within the timeframe specified by the Act. The court also needed to consider whether the appellant's argument that the provisions of Part 9A did not apply to offences that were partly committed before the commencement of the Act was valid.

The court found that Part 9A of the Penalties and Sentences Act 1992 (Qld) applied to the offence in question, despite the fact that the offence was partly committed before the commencement of the Act. The court held that the provisions of Part 9A applied to offences that were partly committed before and partly after the commencement of the Act, as the Act was intended to apply to all continuing offences that were committed after its commencement, regardless of when the offence began. The court also found that the appellant's argument that the provisions of Part 9A did not apply to offences that were partly committed before the commencement of the Act was not valid, as the provisions of the Act were clear and unambiguous in their application to all continuing offences.

The appeal was dismissed, and the conviction and sentence of the appellant were upheld. The court found that the appellant's argument that the provisions of Part 9A did not apply to offences that were partly committed before the commencement of the Act was not supported by the language of the Act or any relevant case law. The court held that the provisions of Part 9A applied to all continuing offences that were committed after its commencement, regardless of when the offence began. As a result, the appellant's appeal was dismissed, and the conviction and sentence were upheld.

Orders

Orders of the court

Appeal dismissed

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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CITATION:	R v Matasaru [2004] QCA 404
PARTIES:	R v MATASARU, Constantine (appellant)
FILE NO/S:	CA No 168 of 2004 SC No 49 of 1998
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against dismissal of application to reopen sentence
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	29 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	27 September 2004
JUDGES:	McPherson and Jerrard JJA and White J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – OTHER MATTERS – QUEENSLAND – where continuing offence constituted by a course of conduct committed partly before and partly after the commencement of Part 9A Penalties and Sentences Act 1992 (Qld) – where declaration that applicant convicted of a serious violent offence made pursuant to Part 9A – whether Part 9A applies to offence Acts Interpretation Act 1954 (Qld), s 20C(3) Criminal Code 1899 (Qld), s 11(2), s 668 Corrective Services Act 2000 (Qld), s 135(2)(c) Penalties and Sentences Act 1992 (Qld), Part 9A, s 188 R v Alexanderson & Ors [2001] QCA 400; CA No 155 of 2001, 24 September 2001, cited R v Corrigan [1994] 2 Qd R 415, cited R v H [2001] QCA 167; CA No 40 of 2001, 1 May 2001, applied R v Ianculescu [1999] QCA 429; [2000] 2 Qd R 521, applied R v Mason and Saunders [1998] 2 Qd R 186, cited R v Maxfield [2000] QCA 320; [2002] 1 Qd R 417, cited
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