R v Mulder - [2002] QCA 455

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mulder [2002] QCA 455

PARTIES:

R
v
MULDER, Lewis Purnachandra
(applicant)

FILE NO/S:

CA No 202 of 2002
DC No 185 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED EXTEMPORE ON:

28 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

28 October 2002

JUDGES:

de Jersey CJ, McPherson JA, Mullins 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 sentences imposed on 3 June 2002 for counts 2 and 3 granted.
2. Application for leave to appeal against sentence imposed on 15 July 2002 refused.
3. In respect of the sentences for which leave to appeal has been granted, the appeal is allowed in respect of those sentences and the sentences are varied by the addition of the declaration that:

“Pursuant to section 161 of the Penalties and Sentences Act 1992, it is declared that 105 days spent in pre-sentence custody between 18 February 2002 and 3 June 2002 be deemed time already served under the sentences.”

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – PROPERTY OFFENCES – applicant pleaded guilty to 2 counts – applicant had been in pre-sentence custody – a declaration under s161 Penalties and Sentences Act 1992 (Qld) should have been made in respect of that pre-sentence custody – declaration made

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – PROPERTY OFFENCES – applicant charged with 3 counts – applicant initially pleaded guilty to counts 2 and 3 – separate custodial sentences imposed for each count – applicant pleaded guilty to count 1 – applicant received custodial sentence to be served concurrently with other sentences – whether custodial sentence imposed for count 2 is manifestly excessive – where sentence imposed exceeded range submitted by prosecutor – whether sentence should reflect range submitted – where applicant had significant prior criminal history – where sentence coupled with post present community based release recommendation – in those circumstances sentence not manifestly excessive

Penalties And Sentences Act 1992 (Qld), s161

COUNSEL:

AJ Rafter for the applicant
PD Kelly for the respondent

SOLICITORS:

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

MULLINS J: The applicant applies for leave to appeal against three sentences. The applicant pleaded guilty to counts 2 and 3 on indictment 185 of 2002 presented at Maroochydore District Court on 3 June 2002. Count 2 was breaking and entering premises and stealing. Count 3 was wilful damage. These offences were committed on 18 February 2002.

On count 2, the applicant was sentenced to two…

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 Mulder

Details

AGLC: R v Mulder [2002] QCA 455
Case: [2002] QCA 455
Decision Date: 28 October 2002

CaseChat Overview and Summary

In the case of R v Mulder, the applicant appealed against sentences imposed for property offences. Mulder was charged with three counts, initially pleading guilty to counts 2 and 3, for which separate custodial sentences were imposed. Subsequently, Mulder pleaded guilty to count 1 and received a custodial sentence to be served concurrently with the other sentences. The applicant sought to reduce the sentences imposed, arguing that the sentence for count 2 was manifestly excessive and should reflect the range submitted by the prosecutor. Additionally, Mulder contended that a declaration under section 161 of the Penalties and Sentences Act 1992 (Qld) should have been made in respect of the pre-sentence custody. The court had to determine whether the custodial sentence for count 2 was manifestly excessive and if the declaration regarding pre-sentence custody should have been made.

The court examined the sentence imposed for count 2, noting that it exceeded the range submitted by the prosecutor. The applicant had a significant prior criminal history, and the sentence was coupled with a post-present community-based release recommendation. The court considered these factors and concluded that the sentence was not manifestly excessive. Regarding the declaration under section 161, the court found that a declaration should have been made in respect of the pre-sentence custody. Therefore, the application for leave to appeal against the sentences imposed for counts 2 and 3 was granted, while the application for leave to appeal against the sentence imposed for count 1 was refused.

In respect of the sentences for which leave to appeal had been granted, the appeal was allowed in those sentences, and the sentences were varied by the addition of the declaration that "Pursuant to section 161 of the Penalties and Sentences Act 1992, it is declared that 105 days spent in pre-sentence custody between 18 February 2002 and 3 June 2002 be deemed time already served under the sentences." The court's decision addressed both the excessiveness of the sentence for count 2 and the omission of the declaration for pre-sentence custody. The final orders included granting leave to appeal for counts 2 and 3, refusing leave to appeal for count 1, allowing the appeal for counts 2 and 3, and varying the sentences by adding the required declaration.

Orders

Orders of the court

1. Application for leave to appeal against sentences imposed on 3 June 2002 for counts 2 and 3 granted.

2. Application for leave to appeal against sentence imposed on 15 July 2002 refused.

3. In respect of the sentences for which leave to appeal has been granted, the appeal is allowed in respect of those sentences and the sentences are varied by the addition of the declaration that:

“Pursuant to section 161 of the Penalties and Sentences Act 1992, it is declared that 105 days spent in pre-sentence custody between 18 February 2002 and 3 June 2002 be deemed time already served under the sentences.”

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 Mulder [2002] QCA 455
PARTIES:	R v MULDER, Lewis Purnachandra (applicant)
FILE NO/S:	CA No 202 of 2002 DC No 185 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED EXTEMPORE ON:	28 October 2002
DELIVERED AT:	Brisbane
HEARING DATE:	28 October 2002
JUDGES:	de Jersey CJ, McPherson JA, Mullins 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 sentences imposed on 3 June 2002 for counts 2 and 3 granted. 2. Application for leave to appeal against sentence imposed on 15 July 2002 refused. 3. In respect of the sentences for which leave to appeal has been granted, the appeal is allowed in respect of those sentences and the sentences are varied by the addition of the declaration that: “Pursuant to section 161 of the Penalties and Sentences Act 1992, it is declared that 105 days spent in pre-sentence custody between 18 February 2002 and 3 June 2002 be deemed time already served under the sentences.”
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – PROPERTY OFFENCES – applicant pleaded guilty to 2 counts – applicant had been in pre-sentence custody – a declaration under s161 Penalties and Sentences Act 1992 (Qld) should have been made in respect of that pre-sentence custody – declaration made CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – PROPERTY OFFENCES – applicant charged with 3 counts – applicant initially pleaded guilty to counts 2 and 3 – separate custodial sentences imposed for each count – applicant pleaded guilty to count 1 – applicant received custodial sentence to be served concurrently with other sentences – whether custodial sentence imposed for count 2 is manifestly excessive – where sentence imposed exceeded range submitted by prosecutor – whether sentence should reflect range submitted – where applicant had significant prior criminal history – where sentence coupled with post present community based release recommendation – in those circumstances sentence not manifestly excessive Penalties And Sentences Act 1992 (Qld), s161
COUNSEL:	AJ Rafter for the applicant PD Kelly for the respondent
SOLICITORS:	Legal Aid Queensland for applicant Director of Public Prosecutions (Queensland) for the respondent