R v Namai - [2014] QCA 213

SUPREME COURT OF QUEENSLAND

CITATION:

R v Namai [2014] QCA 213

PARTIES:

R
v
NAMAI, Ruth Irene
(applicant)

FILE NO/S:

CA No 178 of 2014
DC No 256 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

29 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

19 August 2014

JUDGES:

Holmes JA and Ann Lyons and Flanagan JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for an extension of time refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant pleaded guilty to one count of unlawful wounding – where the applicant was sentenced to 30 months imprisonment with a parole release date set at 9 October 2014 – where the application for leave was filed almost seven months out of date – where no good reason explains the delay – where the applicant submits that the sentence is manifestly excessive because the parole release date should have been set at 9 August 2014 – whether the sentence imposed is manifestly excessive – whether an extension of time should be granted

R v Andrews[2012] QCA 266, considered
R v Baker[2012] QCA 237, distinguished
R v Friday[2005] QCA 440, considered

COUNSEL:

J Sheridan for the applicant
B J Power for the respondent

SOLICITORS:

Trent Kimpton Solicitors for the applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: I agree with the reasons of A Lyons J and the order she proposes.

ANN LYONS J:

The current application

On 9 December 2013 the applicant pleaded guilty to one count of unlawfully wounding her sister on 21 April 2012. The Crown subsequently entered a nolle prosequi in relation to the alternative charge of grievous bodily harm. The learned sentencing judge then sentenced the applicant to two and a half years imprisonment and fixed a parole release date of 9 October 2014 which was ten months after the date of sentence. The applicant had not served any time in pre-sentence custody.

Pursuant to an application filed on 4 July 2014, almost seven months after the date of sentence and almost three months from her parole release date, the applicant now applies for an extension of time within which to file her application for leave to appeal her sentence on the basis that it is manifestly excessive and that the parole release date should have been fixed after eight months in custody, that is at 9 August 2014.

In an affidavit filed in support of her application the applicant states that following her sentence she received written legal advice from her previous solicitors advising her of the sentence which had been imposed and indicating to her that if she wished to appeal that she had 28 days within which to do so. The applicant states that when she received the…

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 Namai

Details

AGLC: R v Namai [2014] QCA 213
Case: [2014] QCA 213
Decision Date: 29 August 2014

CaseChat Overview and Summary

The case of R v Namai involved an appeal against a sentence imposed by the lower court. The applicant, who had pleaded guilty to one count of unlawful wounding, was sentenced to 30 months imprisonment with a parole release date set at 9 October 2014. Dissatisfied with the sentence, the applicant filed an application for leave to appeal, which was almost seven months out of the statutory time limit. The applicant did not provide a satisfactory explanation for the delay in filing the application. The main issues before the court were whether the sentence was manifestly excessive and, if so, whether an extension of time should be granted to permit the appeal.

The court considered the criteria for assessing whether a sentence is manifestly excessive and whether there was a sufficient ground for an extension of time. The court noted that the sentence imposed was within the statutory maximum for the offence, and the applicant had not demonstrated that the sentence was manifestly excessive. The court also considered the reasons for the delay in filing the application for leave to appeal and found that there was no good reason for the delay. The court held that the sentence was not manifestly excessive and that there was no sufficient ground to grant an extension of time. The application for an extension of time was therefore refused.

The court's decision was based on a thorough analysis of the relevant law and principles. The court found that the sentence imposed was within the statutory maximum for the offence and that the applicant had not demonstrated that the sentence was manifestly excessive. The court also found that there was no good reason for the delay in filing the application for leave to appeal. The application for an extension of time was therefore refused, and the applicant's appeal was dismissed. This decision serves as a reminder that the courts will not tolerate undue delay in filing applications for leave to appeal and that the criteria for granting an extension of time are strict.

Orders

Orders of the court

Application for an extension of time refused.

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 Namai [2014] QCA 213
PARTIES:	R v NAMAI, Ruth Irene (applicant)
FILE NO/S:	CA No 178 of 2014 DC No 256 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	29 August 2014
DELIVERED AT:	Brisbane
HEARING DATE:	19 August 2014
JUDGES:	Holmes JA and Ann Lyons and Flanagan JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for an extension of time refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant pleaded guilty to one count of unlawful wounding – where the applicant was sentenced to 30 months imprisonment with a parole release date set at 9 October 2014 – where the application for leave was filed almost seven months out of date – where no good reason explains the delay – where the applicant submits that the sentence is manifestly excessive because the parole release date should have been set at 9 August 2014 – whether the sentence imposed is manifestly excessive – whether an extension of time should be granted R v Andrews[2012] QCA 266, considered R v Baker[2012] QCA 237, distinguished R v Friday[2005] QCA 440, considered
COUNSEL:	J Sheridan for the applicant B J Power for the respondent
SOLICITORS:	Trent Kimpton Solicitors for the applicant Director of Public Prosecutions (Queensland) for the respondent