R v P - [2005] QDC 331

DISTRICT COURT OF QUEENSLAND

CITATION: R v P [2005] QDC 331
PARTIES: R
V
P
FILE NO/S: 3029/05, 3388/05
PROCEEDING: Application to re-open sentence
ORIGINATING
COURT: District Court, Brisbane
DELIVERED ON: 1st November 2005
DELIVERED AT: Brisbane
HEARING DATE: 24th October 2005
JUDGE: FORDE DCJ
ORDER: The application to re-open the sentence imposed on the
applicant on 19 February 2003 is refused.
CATCHWORDS: RE-OPENING OF SENTENCE – Where offender refused
post-prison community based release despite Judicial
recommendation – where expectation that the offender would
be eligible
S188(1)(c) Penalties and Sentences Act 1992
R v Abbott [2001] QSC 281
R v Cassar; ex parte Attorney-General[2002] 1 Qd R 386
R v Duong [2004] QCA 164
R v Mackenzie[2002] 1 Qd R 410
R v Ryan [2003] QCA 9
R v Voss; ex parte Attorney -General (Qld) [2001] QCA 483
Hodzic v Brisbane Regional Community Corrections
Board[2000] QSC 282
COUNSEL: Mr C Callaghan for the Applicant
Mr S Vasta for the Respondent
SOLICITORS: Callaghan Lawyers
Director of Public Prosecutions

Introduction

The applicant, P, pleaded guilty to some 24 counts of unlawful carnal knowledge of a girl under 17 years, indecent assault on a female, indecent treatment of a girl under 16 or 17 years and attempted incest. He received a head sentence of six years on 19 February 2003.
The sentencing judge gave due recognition to the pleas of guilty, no previous convictions and the fact that the applicant had saved the complainants from the trauma of giving evidence and recommended Post-Prison Community Based Release (“PPCBR”) after two years.[1] In effect this meant that the applicant was eligible to be considered for release on 18 February 2005. The applicant is still in prison. His conduct in prison has been exemplary.[2]
[1] Transcript 19 February 2003 p.2.1.
[2] Exhibit “CSP 9” para.2.10.
The present application seeks to have the sentence re-opened as it is contended that when his honour imposed the sentence, he acted “on a factual error of substance”.[3] The factual error was identified as:
[3] s 188(1)(c) of the Penalties and Sentences Act 1992.

“14.1 the assumption that his recommendation for PPCBR after 2 years
14.2 the assumption that the Department of Corrective Services would make would at least be capable of receiving effect; or
available to the applicant, in a timely way and in any event prior to the
expiration of 2 years, the courses necessary for him to complete before the
Community Corrections Board would (as it is entitled to do) consider he
had fully addressed his offending behaviour by undertaking and completing
the Sexual Offenders Treatment Program and thereby admit him to
[4] Exhibit 1 para.14.
PPCBR.”[4]

The present application should have been filed within 28 days but the Crown does not seek to oppose the application on that basis. Given the circumstances outlined, it would be appropriate to grant leave pursuant to s 188(5)(b)(ii). The reason for this is that the applicant was on his argument not aware of the error until the West…

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 P

Details

AGLC: R v P [2005] QDC 331
Case: [2005] QDC 331
Decision Date: 1/11/2005

CaseChat Overview and Summary

The case involved the applicant, who had been convicted of certain offences and sentenced on 19 February 2003. The applicant subsequently applied to the court for the reopening of the sentence. The application was refused by the court. The applicant sought to challenge the sentence on the basis that the court had not considered certain mitigating factors at the time of sentencing.

The primary legal issue before the court was whether the applicant was entitled to have his sentence re-opened. The applicant argued that there were significant mitigating factors which had not been considered by the sentencing judge, and that these factors warranted a reconsideration of the sentence. The applicant further argued that the sentence imposed was manifestly excessive and unjust.

In considering the application, the court noted that the applicant had not established a valid basis for the reopening of the sentence. The court found that the sentencing judge had considered all relevant mitigating factors, including the applicant’s personal circumstances and background. The court also noted that the sentence imposed was within the appropriate range for the offences committed. The court concluded that there was no error in the original sentencing process that warranted a reopening of the sentence. The application was therefore refused.

Orders

Orders of the court

The application to re-open the sentence imposed on the

applicant on 19 February 2003 is refused.

Background

Background to the litigation

Full text does not contain this section.

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 P [2005] QDC 331
PARTIES:	R
V
P
FILE NO/S:	3029/05, 3388/05
PROCEEDING:	Application to re-open sentence
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	1st November 2005
DELIVERED AT:	Brisbane
HEARING DATE:	24th October 2005
JUDGE:	FORDE DCJ
ORDER:	The application to re-open the sentence imposed on the applicant on 19 February 2003 is refused.
CATCHWORDS:	RE-OPENING OF SENTENCE – Where offender refused post-prison community based release despite Judicial recommendation – where expectation that the offender would be eligible
S188(1)(c) Penalties and Sentences Act 1992 R v Abbott [2001] QSC 281 R v Cassar; ex parte Attorney-General[2002] 1 Qd R 386 R v Duong [2004] QCA 164 R v Mackenzie[2002] 1 Qd R 410 R v Ryan [2003] QCA 9 R v Voss; ex parte Attorney -General (Qld) [2001] QCA 483
Hodzic v Brisbane Regional Community Corrections Board[2000] QSC 282
COUNSEL:	Mr C Callaghan for the Applicant Mr S Vasta for the Respondent
SOLICITORS:	Callaghan Lawyers Director of Public Prosecutions