R v O'Brien - [2011] QCA 110

SUPREME COURT OF QUEENSLAND

CITATION:

R v O’Brien [2011] QCA 110

PARTIES:

R
v
O’Brien, Allan Terry
(applicant)

FILE NO/S:

CA No 47 of 2011
DC No 420 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Ipswich

DELIVERED EX
TEMPORE ON:

2 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

2 June 2011

JUDGES:

Margaret McMurdo P, Chesterman JA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring to the orders made

ORDERS:

1. The application for an extension of time is dismissed;

2. The Registry not accept any further application from this applicant for an extension of time to appeal against the convictions or the sentence imposed on 31 May 2007 without leave of a Judge of Appeal.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant pleaded guilty to one charge of house breaking with a circumstance of aggravation and one count of rape – where the applicant’s appeal against conviction was dismissed – where the applicant’s subsequent applications for an extension of time to appeal against conviction and applications for leave to appeal against sentence have been refused – where the applicant seeks an extension of time to appeal against sentence on the ground that he wishes to adduce new evidence under s 188 of the Penalties and Sentences Act – whether the application for an extension of time should be granted

Penalties and Sentences Act 1992 (Qld), s 188

COUNSEL:

The applicant appeared on his own behalf
D R Kinsella for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

CHESTERMAN JA: On 12 February 2007 the applicant pleaded guilty in the District Court to one charge of house breaking with a circumstance of aggravation and one count of rape.

On 31 May 2007, also in the District Court, he pleaded guilty to one count of stealing. On that date, 31 May 2007, he was sentenced to eight years’ imprisonment for the house breaking, 14 years’ for the rape and two years’ for the stealing. All sentences were to be served concurrently.

On 3 October 2007, this Court allowed the applicant an extension of time within which to appeal against his convictions and an application to appeal against his sentence. On 5 June 2008 the appeal against his convictions was dismissed and the application for leave to appeal against sentence was refused.

On 31 October 2008, the applicant again applied for an extension of time to appeal against the conviction and for leave to appeal against the sentence. The Court refused that application on the basis that he could not appeal a second time. He has now applied a third time for an extension of time within which to appeal and for leave to appeal against his sentence.

The ground given in the application to extend time is…

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 O'Brien

Details

AGLC: R v O'Brien [2011] QCA 110
Case: [2011] QCA 110
Decision Date: 2 June 2011

CaseChat Overview and Summary

The applicant, O'Brien, sought an extension of time to appeal against his sentence. He had previously pleaded guilty to one count of house breaking with an aggravating circumstance and one count of rape. The appeal against his conviction had been dismissed, as had subsequent applications for an extension of time to appeal against the conviction and for leave to appeal against the sentence. The applicant now sought an extension of time to appeal against the sentence on the ground that he wished to adduce new evidence under section 188 of the Penalties and Sentences Act.

The court had to determine whether the application for an extension of time should be granted. The court noted that the applicant had not demonstrated any exceptional circumstances warranting an extension of time. The applicant had already had an opportunity to appeal against his conviction and sentence, and had not demonstrated any reason why he was unable to do so within the prescribed time. The court also noted that the applicant's proposed new evidence was not of a kind that would warrant an extension of time.

The court dismissed the application for an extension of time. The court also ordered that the Registry not accept any further application from the applicant for an extension of time to appeal against the convictions or the sentence imposed on 31 May 2007 without leave of a Judge of Appeal. The court found that the applicant had not demonstrated any exceptional circumstances warranting an extension of time, and that there were no grounds for the court to grant an extension of time.

Orders

Orders of the court

1. The application for an extension of time is dismissed;

2. The Registry not accept any further application from this applicant for an extension of time to appeal against the convictions or the sentence imposed on 31 May 2007 without leave of a Judge of Appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v O’Brien [2011] QCA 110
PARTIES:	R v O’Brien, Allan Terry (applicant)
FILE NO/S:	CA No 47 of 2011 DC No 420 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Ipswich
DELIVERED EX TEMPORE ON:	2 June 2011
DELIVERED AT:	Brisbane
HEARING DATE:	2 June 2011
JUDGES:	Margaret McMurdo P, Chesterman JA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring to the orders made
ORDERS:	1. The application for an extension of time is dismissed; 2. The Registry not accept any further application from this applicant for an extension of time to appeal against the convictions or the sentence imposed on 31 May 2007 without leave of a Judge of Appeal.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant pleaded guilty to one charge of house breaking with a circumstance of aggravation and one count of rape – where the applicant’s appeal against conviction was dismissed – where the applicant’s subsequent applications for an extension of time to appeal against conviction and applications for leave to appeal against sentence have been refused – where the applicant seeks an extension of time to appeal against sentence on the ground that he wishes to adduce new evidence under s 188 of the Penalties and Sentences Act – whether the application for an extension of time should be granted Penalties and Sentences Act 1992 (Qld), s 188
COUNSEL:	The applicant appeared on his own behalf D R Kinsella for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent