R v O'Shea - [2011] QCA 18

SUPREME COURT OF QUEENSLAND

CITATION:

R v O'Shea [2011] QCA 18

PARTIES:

R
v
O'SHEA, Paul Gerard
(applicant)

FILE NO/S:

CA No 227 of 2010
DC No 799 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED EX TEMPORE ON:

16 February 2011

DELIVERED AT:

Brisbane

HEARING DATE:

16 February 2011

JUDGES:

Margaret McMurdo P and Fraser and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring to the orders made

ORDERS:

1.    The application to adduce further evidence is granted.

2.    The application for leave to appeal against sentence is granted.

3.    The appeal is allowed to the limited extent of setting aside the parole eligibility date and instead ordering that the sentence be suspended from 16 February 2011, with an operational period of six months.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – ADMISSION OF FRESH EVIDENCE – IN GENERAL – where the applicant sought to adduce evidence that he is unable to obtain parole because he does not have an address in Queensland – where some of the evidence was not available at sentence – whether the admission of the evidence would cause the court to form the opinion that some other sentence should have been passed – whether it is in the interests of justice to admit the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS OF INTERFERENCE – FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE – where the applicant was convicted of indecent dealing with a child with a circumstance of aggravation – where the applicant was sentenced to six months imprisonment with an order that he be eligible for parole at the halfway point – where fresh evidence was adduced relating to the applicant's inability to obtain parole – whether it was in the interests of justice to re-sentence the applicant on the basis of the new evidence

Criminal Code 1899 (Qld), s 668E(3)

R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, followed
Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35, followed

COUNSEL:

S T Courtney for the applicant
M J Copley SC for the respondent

SOLICITORS:

Justin Crosby Solicitors for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: The applicant was convicted after a jury trial of indecent dealing with a 12 year old friend of his daughter in May 2007 with a circumstance of aggravation that at the time she was in his care. He was sentenced to six months imprisonment with an order that he be eligible for parole on 7 December 2010. He has abandoned his appeal against conviction but has applied for leave to appeal against his sentence. He also seeks to adduce further evidence in this application.

The applicant was 40 at the time of the offence and 43 at sentence. He had no prior convictions.

The facts of his offending were as follows.…

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'Shea

Details

AGLC: R v O'Shea [2011] QCA 18
Case: [2011] QCA 18
Decision Date: 16 February 2011

CaseChat Overview and Summary

In the matter of R v O'Shea, the applicant sought to appeal his sentence and adduce fresh evidence that he was unable to obtain parole because he did not have an address in Queensland. The evidence was deemed fresh as it was not available at the time of the original sentence. The case was heard in the court of appeal, which was tasked with determining whether the admission of this new evidence would lead to the conclusion that a different sentence should have been passed, and whether it was in the interests of justice to admit the evidence.

The primary legal issue that the court had to decide was whether the fresh evidence about the applicant's parole ineligibility should be admitted and considered in the appeal process. The court examined the circumstances in which fresh evidence could be adduced and the conditions under which it would be in the interests of justice to admit such evidence. The court also considered the effect of the new evidence on the applicant's sentence and whether it warranted a re-sentencing.

The court found that the fresh evidence was admissible and that it was in the interests of justice to admit it. The court determined that the inability to obtain parole due to the lack of an address in Queensland was a significant factor that should have been considered at the time of sentencing. The court concluded that the admission of the fresh evidence would lead to the conclusion that a different sentence should have been passed. Consequently, the court allowed the appeal to the limited extent of setting aside the parole eligibility date and ordering that the sentence be suspended from 16 February 2011, with an operational period of six months.

The court granted the application to adduce further evidence and the application for leave to appeal against the sentence. The appeal was allowed to the limited extent of re-sentencing the applicant. The parole eligibility date was set aside, and the sentence was suspended from 16 February 2011, with an operational period of six months.

Orders

Orders of the court

1. The application to adduce further evidence is granted.

2. The application for leave to appeal against sentence is granted.

3. The appeal is allowed to the limited extent of setting aside the parole eligibility date and instead ordering that the sentence be suspended from 16 February 2011, with an operational period of six months.

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 O'Shea [2011] QCA 18
PARTIES:	R v O'SHEA, Paul Gerard (applicant)
FILE NO/S:	CA No 227 of 2010 DC No 799 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED EX TEMPORE ON:	16 February 2011
DELIVERED AT:	Brisbane
HEARING DATE:	16 February 2011
JUDGES:	Margaret McMurdo P and Fraser and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring to the orders made
ORDERS:	1. The application to adduce further evidence is granted. 2. The application for leave to appeal against sentence is granted. 3. The appeal is allowed to the limited extent of setting aside the parole eligibility date and instead ordering that the sentence be suspended from 16 February 2011, with an operational period of six months.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – ADMISSION OF FRESH EVIDENCE – IN GENERAL – where the applicant sought to adduce evidence that he is unable to obtain parole because he does not have an address in Queensland – where some of the evidence was not available at sentence – whether the admission of the evidence would cause the court to form the opinion that some other sentence should have been passed – whether it is in the interests of justice to admit the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS OF INTERFERENCE – FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE – where the applicant was convicted of indecent dealing with a child with a circumstance of aggravation – where the applicant was sentenced to six months imprisonment with an order that he be eligible for parole at the halfway point – where fresh evidence was adduced relating to the applicant's inability to obtain parole – whether it was in the interests of justice to re-sentence the applicant on the basis of the new evidence Criminal Code 1899 (Qld), s 668E(3) R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, followed Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35, followed
COUNSEL:	S T Courtney for the applicant M J Copley SC for the respondent
SOLICITORS:	Justin Crosby Solicitors for the applicant Director of Public Prosecutions (Queensland) for the respondent