R v Ogawa

Case [2009] QCA 201

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ogawa [2009] QCA 201

PARTIES:

R
(appellant)
v
MEGUMI OGAWA
(respondent)

FILE NO/S:

Appeal No 6659 of 2009
SC No 6086 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal from Bail Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Orders delivered ex tempore on 9 July 2009
Reasons delivered on 17 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

9 July 2009

JUDGES:

Muir and Fraser JJA and Wilson J
Judgment of the Court

ORDER:

Delivered ex tempore on 9 July 2009

1.   Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – BAIL – REVOCATION, VARIATION, REVIEW AND APPEAL – where respondent was convicted after trial of two counts of using a carriage service to harass and two counts of using a carriage service to make a threat – where respondent was sentenced to six months imprisonment on each count and ordered to be released after serving four months imprisonment subject to certain conditions – where 44 days pre-sentence custody was declared to be imprisonment already served under the sentence – where respondent was granted bail pending appeal – whether primary judge erred in failing to apply the principle that there should be strong grounds for holding that the appeal would be allowed before bail should be granted – whether primary judge erred in evaluating the relevance of the alleged shortness of the respondent's custodial term

Acts Interpretation Act 1901 (Cth), s 23
Bail Act 1980 (Qld), s 16
Criminal Code Act 1995 (Cth), s 474.15

B v The Queen (1992) 175 CLR 599; [1992] HCA 68, cited
Chew v The Queen (No 2) (1991) 66 ALJR 221, cited
Daly v Medwell (1985) 40 SASR 281, cited
Ettridge v DPP (Qld)[2003] QCA 410, cited
Ex Parte: Maher [1986] 1 Qd R 303, considered
Hanson v DPP (Qld) (2003) 142 A Crim R 241; [2003] QCA 409, cited
In re Cooper's Application for Bail [1961] ALR 584, cited
Marotta v The Queen (1999) 73 ALJR 265; [1999] HCA 4, cited
Newman v Speigler & Anor[2009] QCA 155, cited
R v Bedington [1970] Qd R 353, cited
R v Fuller[2008] QCA 303, cited
R v Martens[2009] QCA 139, cited
R v Morrow and Flynn [1991] 2 Qd R 309; [1990] CCA 198, distinguished
United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60, cited
Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26, cited

COUNSEL:

D Kent for the appellant
S Di Carlo for the respondent

SOLICITORS:

Commonwealth Director of Public Prosecutions for the appellant
Provest Law for the respondent

Introduction

  1. THE COURT:  The Commonwealth Director of Public Prosecutions appeals against an order of a judge of the Supreme Court on 18 June 2009 granting the respondent bail pending appeal.  This Court ordered on 9 July 2009 that the appeal be dismissed.  These are the reasons for that order.

  1. The respondent was convicted on…

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Details
AGLC
R v Ogawa [2009] QCA 201
Case
[2009] QCA 201
Decision Date

CaseChat Overview and Summary

The respondent was convicted by a jury of two counts of using a carriage service to harass and two counts of using a carriage service to make a threat. The respondent was sentenced to six months imprisonment on each count, with the sentences to run concurrently. The respondent was ordered to be released after serving four months imprisonment, subject to certain conditions. The respondent was granted bail pending appeal. The respondent appealed against the decision to grant bail. The primary judge found that the appeal had no reasonable prospects of success, but nevertheless granted bail. The primary judge found that the sentence was not excessive, and that there was no need for deterrence.

The legal issues before the court were whether the primary judge erred in failing to apply the principle that there should be strong grounds for holding that the appeal would be allowed before bail should be granted, and whether the primary judge erred in evaluating the relevance of the alleged shortness of the respondent's custodial term. The court found that the primary judge did not err in failing to apply the principle that there should be strong grounds for holding that the appeal would be allowed before bail should be granted. The court found that the primary judge was correct to consider the shortness of the custodial term, and that the primary judge did not err in evaluating the relevance of the alleged shortness of the custodial term. The court found that the primary judge did not err in granting bail. The appeal was dismissed.

Orders

Orders of the court

Delivered ex tempore on 9 July 2009

1. Appeal dismissed.

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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