R v Newman - [2008] QCA 147

SUPREME COURT OF QUEENSLAND

CITATION:

R v Newman [2008] QCA 147

PARTIES:

R
v
NEWMAN, Malarka
(applicant/appellant)

FILE NO/S:

CA No 49 of 2008
Indictment No 2411 of 2003
Indictment No 2412 of 2003
Indictment No 2413 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

Orders delivered ex tempore 10 April 2008
Reasons delivered 6 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

10 April 2008

JUDGES:

McMurdo P, Fryberg and Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Orders of 10 April 2008

1.   Application for leave to appeal granted

2.   Appeal allowed

3.   The sentence imposed in the District Court on 22 February 2008 is set aside and instead the order is as follows:

(a)   In relation to count 1 on indictment 2411 of 2003 and count 14 on indictment 2413 of 2003:

  (i)   Order that the appellant serve two years of the suspended imprisonment endorsed on the indictments as having been imposed in the District Court on 10 October 2003;

  (ii)   Fix 10 April 2008 as the date for the appellant to be released on parole

(b)   In relation to counts 5, 6, 8, 9, 10, 11, 12, 13, 17, 18, 19, 21 and 22 on indictment 2413 of 2003:

  (i)   Order that the appellant serve two months of the suspended imprisonment endorsed on the indictment as having been imposed in the District Court on 10 October 2003;

  (ii)   Fix 10 April 2008 as the date for the appellant to be released on parole

4. Direct that counsel for the appellant inform the appellant of the matters set out in s 160G(5) of the Penalties and Sentences Act 1992 (Qld).

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – the applicant committed an offence during the operational period of partially suspended sentences of imprisonment – the applicant was sentenced to serve nine months of the two and a half year portion left to run of the suspended sentences – the sentencing judge set a parole eligibility date after four months – applicability of s 160B Penalties and Sentences Act to set a parole release date or s 160C to set a parole eligibility date – significance of error to sentencing discretion – when the Court of Appeal must re-sentence

MAGISTRATES – JURISDICTION AND PROCEDURE GENERALLY – JURISDICTION, POWERS AND DUTIES – the applicant successfully completed an intensive drug rehabilitation program – a magistrate signed the applicant's graduation certificate on behalf of the Drug Court team congratulating her on her achievement – appropriateness of such comment by a magistrate in the certificate

Acts Interpretation Act 1954 (Qld), s 14(2)
Drug Court Act 2000 (Qld), s 4, s 11
Penalties and Sentences Act 1992 (Qld), s 4, s 147(1), s 147(3), s 160, s 160A, s 160B, s 160C, s 160D

Baxter…

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 Newman

Details

AGLC: R v Newman [2008] QCA 147
Case: [2008] QCA 147
Decision Date: 6 June 2008 (Reasons); 10 April 2008 (Orders delivered ex tempore)

CaseChat Overview and Summary

In the matter of R v Newman, the appellant challenged his sentence in the Court of Appeal of the Supreme Court of Queensland. The appellant, previously convicted and sentenced to partially suspended sentences of imprisonment, committed an offence during the operational period of those sentences. He was subsequently sentenced to serve nine months of the remaining two and a half years of the suspended sentences. The sentencing judge set a parole eligibility date after four months. The appellant appealed on the basis that the sentencing judge had erred in setting a parole eligibility date rather than a parole release date, and that this error affected the sentencing discretion exercised. The appellant also contended that the magistrate’s comment on his Drug Court graduation certificate was inappropriate.

The court was required to determine whether the sentencing judge’s error in setting a parole eligibility date instead of a parole release date was significant enough to warrant interference with the sentence. The court also needed to assess whether the magistrate's comment on the Drug Court graduation certificate was inappropriate. The central issue was whether these errors necessitated the Court of Appeal to re-sentence the appellant. The court examined the applicability of sections 160B and 160C of the Penalties and Sentences Act to determine the correct procedure for setting parole dates. Furthermore, the court considered the significance of the magistrate's comment and its potential impact on the appellant's perception of judicial impartiality.

The Court of Appeal found that the sentencing judge had indeed erred in setting a parole eligibility date instead of a parole release date, which affected the sentencing discretion. The court held that this error was significant enough to warrant interference with the sentence. The Court of Appeal also found that the magistrate's comment on the Drug Court graduation certificate was inappropriate as it could be perceived as an endorsement of the appellant's achievements. Given these findings, the Court of Appeal set aside the original sentence and imposed a new sentence, ordering the appellant to serve two years for certain counts and two months for other counts, with parole eligibility set for 10 April 2008.

The Court of Appeal granted the appellant leave to appeal, allowed the appeal, and re-sentenced the appellant accordingly. The court directed that counsel for the appellant inform the appellant of the matters set out in section 160G(5) of the Penalties and Sentences Act 1992 (Qld).

Orders

Orders of the court

Orders of 10 April 2008

1. Application for leave to appeal granted

2. Appeal allowed

3. The sentence imposed in the District Court on 22 February 2008 is set aside and instead the order is as follows:

(a) In relation to count 1 on indictment 2411 of 2003 and count 14 on indictment 2413 of 2003:

(i) Order that the appellant serve two years of the suspended imprisonment endorsed on the indictments as having been imposed in the District Court on 10 October 2003;

(ii) Fix 10 April 2008 as the date for the appellant to be released on parole

(b) In relation to counts 5, 6, 8, 9, 10, 11, 12, 13, 17, 18, 19, 21 and 22 on indictment 2413 of 2003:

(i) Order that the appellant serve two months of the suspended imprisonment endorsed on the indictment as having been imposed in the District Court on 10 October 2003;

(ii) Fix 10 April 2008 as the date for the appellant to be released on parole

4. Direct that counsel for the appellant inform the appellant of the matters set out in s 160G(5) of the Penalties and Sentences Act 1992 (Qld).

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 Newman [2008] QCA 147
PARTIES:	R v NEWMAN, Malarka (applicant/appellant)
FILE NO/S:	CA No 49 of 2008 Indictment No 2411 of 2003 Indictment No 2412 of 2003 Indictment No 2413 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	Orders delivered ex tempore 10 April 2008 Reasons delivered 6 June 2008
DELIVERED AT:	Brisbane
HEARING DATE:	10 April 2008
JUDGES:	McMurdo P, Fryberg and Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Orders of 10 April 2008 1. Application for leave to appeal granted 2. Appeal allowed 3. The sentence imposed in the District Court on 22 February 2008 is set aside and instead the order is as follows: (a) In relation to count 1 on indictment 2411 of 2003 and count 14 on indictment 2413 of 2003: (i) Order that the appellant serve two years of the suspended imprisonment endorsed on the indictments as having been imposed in the District Court on 10 October 2003; (ii) Fix 10 April 2008 as the date for the appellant to be released on parole (b) In relation to counts 5, 6, 8, 9, 10, 11, 12, 13, 17, 18, 19, 21 and 22 on indictment 2413 of 2003: (i) Order that the appellant serve two months of the suspended imprisonment endorsed on the indictment as having been imposed in the District Court on 10 October 2003; (ii) Fix 10 April 2008 as the date for the appellant to be released on parole *4. Direct that counsel for the appellant inform the appellant of the matters set out in s 160G(5) of the Penalties and Sentences Act* 1992 (Qld).**
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – the applicant committed an offence during the operational period of partially suspended sentences of imprisonment – the applicant was sentenced to serve nine months of the two and a half year portion left to run of the suspended sentences – the sentencing judge set a parole eligibility date after four months – applicability of s 160B Penalties and Sentences Act to set a parole release date or s 160C to set a parole eligibility date – significance of error to sentencing discretion – when the Court of Appeal must re-sentence MAGISTRATES – JURISDICTION AND PROCEDURE GENERALLY – JURISDICTION, POWERS AND DUTIES – the applicant successfully completed an intensive drug rehabilitation program – a magistrate signed the applicant's graduation certificate on behalf of the Drug Court team congratulating her on her achievement – appropriateness of such comment by a magistrate in the certificate Acts Interpretation Act 1954 (Qld), s 14(2) Drug Court Act 2000 (Qld), s 4, s 11 Penalties and Sentences Act 1992 (Qld), s 4, s 147(1), s 147(3), s 160, s 160A, s 160B, s 160C, s 160D Baxter…