R v Nelson - [2018] QCA 53

SUPREME COURT OF QUEENSLAND

CITATION:

R v Nelson [2018] QCA 53

PARTIES:

R
v
NELSON, Anthony
(applicant)

FILE NO/S:

CA No 209 of 2016
DC No 544 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport – Date of Sentence: 28 July 2016 (Everson DCJ)

DELIVERED ON:

Date of Orders: 17 November 2017
Date of Publication of Reasons: 27 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

17 November 2017

JUDGES:

Sofronoff P and Fraser JA and Henry J

ORDERS:

Date of Orders: 17 November 2017

1.   Application for leave to adduce evidence refused.

2.   Application for leave to appeal against sentence refused.

3.   A warrant issue for the arrest of the applicant.

4.   The warrant lie in the registry for seven days.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – GENERALLY – where application to adduce further evidence on appeal – where evidence to be adduced included a psychological report – whether application to adduce further evidence should be granted – where the applicant seeks to give and call new evidence to establish that he had a brain injury at the time of the offending and was diagnosed with a condition affecting the metabolism of alcohol

CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – where the applicant pleaded guilty to two counts of indecent dealing with a child – where a sentence of six months’ imprisonment was imposed on each count to be served concurrently, suspended after serving two months for an operational period of one year

Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, cited
R v Davidson: Ex parte Attorney-General (Qld)[2009] QCA 283, cited
R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited
R v Roberts[2009] QCA 22, cited
R v Theohares [2017] 1 Qd R 211; [2016] QCA 51, cited

COUNSEL:

L Ackerman for the applicant
J A Wooldridge for the respondent

SOLICITORS:

Pharmacis Canning Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons of Henry J.

FRASER JA: I agree with the reasons for judgment of Henry J.

HENRY J: The applicant pleaded guilty to two counts of indecent dealing with a child. On each count he received concurrent sentences of six months’ imprisonment, suspended after serving two months for an operational period of one year.

He applied for leave to appeal the sentence and for leave to adduce evidence. His eventual grounds in the application for leave to appeal were:

1. The sentence was, in all the circumstances, manifestly excessive.

2. The learned sentencing judge erred when not finding exceptional circumstances in accordance with s 9(4) Penalties and Sentences Act 1992 (Qld).

3. The sentencing discretion miscarried because evidence now available, namely evidence of the applicant’s exaggerated cortical disinhibition at the material time, was not adduced at 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 Nelson

Details

AGLC: R v Nelson [2018] QCA 53
Case: [2018] QCA 53
Decision Date: 27 March 2018

CaseChat Overview and Summary

In the matter of R v Nelson, the applicant, a convicted person, sought leave to adduce further evidence on appeal against his conviction and sentence. The applicant had pleaded guilty to two counts of indecent dealing with a child and was sentenced to six months’ imprisonment on each count, to be served concurrently, and suspended after serving two months for an operational period of one year. The applicant sought to introduce a psychological report to establish that he had a brain injury at the time of the offending and was diagnosed with a condition affecting the metabolism of alcohol. The court was required to decide whether the application to adduce further evidence should be granted and whether the application to appeal against sentence should be allowed.

The court considered the applicant's application to adduce further evidence. It was noted that the application was made after the expiration of the time limit for doing so and that the evidence was not such that it could not have been adduced at the original hearing. The court held that the application to adduce further evidence should be refused. The court also considered the application to appeal against sentence. The court held that the sentence was within the appropriate range and that there were no grounds for reducing the sentence. The court held that the application to appeal against sentence should be refused.

The court made orders refusing the application for leave to adduce evidence, refusing the application for leave to appeal against sentence, issuing a warrant for the arrest of the applicant, and directing that the warrant lie in the registry for seven days. The orders were made on 17 November 2017.

Orders

Orders of the court

Date of Orders: 17 November 2017

1. Application for leave to adduce evidence refused.

2. Application for leave to appeal against sentence refused.

3. A warrant issue for the arrest of the applicant.

4. The warrant lie in the registry for seven days.

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 Nelson [2018] QCA 53
PARTIES:	R v NELSON, Anthony (applicant)
FILE NO/S:	CA No 209 of 2016 DC No 544 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport – Date of Sentence: 28 July 2016 (Everson DCJ)
DELIVERED ON:	Date of Orders: 17 November 2017 Date of Publication of Reasons: 27 March 2018
DELIVERED AT:	Brisbane
HEARING DATE:	17 November 2017
JUDGES:	Sofronoff P and Fraser JA and Henry J
ORDERS:	Date of Orders: 17 November 2017 1. Application for leave to adduce evidence refused. 2. Application for leave to appeal against sentence refused. 3. A warrant issue for the arrest of the applicant. 4. The warrant lie in the registry for seven days.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – GENERALLY – where application to adduce further evidence on appeal – where evidence to be adduced included a psychological report – whether application to adduce further evidence should be granted – where the applicant seeks to give and call new evidence to establish that he had a brain injury at the time of the offending and was diagnosed with a condition affecting the metabolism of alcohol CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – where the applicant pleaded guilty to two counts of indecent dealing with a child – where a sentence of six months’ imprisonment was imposed on each count to be served concurrently, suspended after serving two months for an operational period of one year Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, cited R v Davidson: Ex parte Attorney-General (Qld)[2009] QCA 283, cited R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited R v Roberts[2009] QCA 22, cited R v Theohares [2017] 1 Qd R 211; [2016] QCA 51, cited
COUNSEL:	L Ackerman for the applicant J A Wooldridge for the respondent
SOLICITORS:	Pharmacis Canning Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent