R v Powderham - [2001] QCA 429

SUPREME COURT OF QUEENSLAND

CITATION: R v Powderham [2001] QCA 429

PARTIES: R
v
POWDERHAM, Mark Bradley
(applicant/appellant)

FILE NO/S: CA No 72 of 2001
SC No 454 of 2000

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT:
Supreme Court at Brisbane

DELIVERED ON: 12 October 2001

DELIVERED AT: Brisbane

HEARING DATE: 27 September 2001

JUDGES: McPherson JA, Chesterman and Douglas JJ
Separate reasons for each member of the Court, each concurring as to the orders made

ORDER: Application and appeal allowed, to the extent only of deleting the declaration that the applicant’s conviction or sentence on 9 March 2001 was of or for a serious violent offence

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – whether the sentencing Judge was required to make a declaration that the conviction was a conviction of a serious violent offence under the Penalties and Sentences Act 1992 (Qld)

Corrective Services Act 1988 (Qld), s 166(1), s 187(1), s 190(1)

Penalties and Sentences Act 1992 (Qld), s 156A(2), s 161A, s 161B, s 161C.

R v Collins [2000] 1 Qd R 45, considered

COUNSEL: J M McLennan for the applicant/appellant
D Meredith for the respondent

SOLICITORS: Legal Aid Queensland for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: So far as relevant here, the applicant was originally sentenced on 24 February 1998 to a term of imprisonment for 3 years with a recommendation for parole after 12 months. The offences for which he was sentenced on that occasion were numerous and included two or possibly three counts of burglary or cognate offences included in the schedule to the Penalties and Sentences Act 1992. As it happened, he was not released on parole until 19 July 1999, and it was while he was on parole that on 27 September 1999 he committed the offences of arson and manslaughter which now bring him before this Court.

Having then been taken into custody, the applicant’s parole was suspended on 5 October 1999, when the prison authorities treated him as having recommenced the sentence imposed on 24 February 1998. On 9 March 2001, he was brought before the Supreme Court and sentenced on pleas of guilty to manslaughter and arson to concurrent terms of imprisonment of 9 years and 4 years respectively. The effect of the convictions for those two offences was, under s 187(1) of the Corrective Services Act 1988 (which then still applied), to cancel his parole. Section 190(1) of that Act provided that no part of the time between the applicant’s release on parole and his recommencing service of the unexpired portion of his term of imprisonment (except for the period in detention following suspension of his parole) should be regarded as time served in respect of that term. The effect of the exception was that the whole of…

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 Powderham

Details

AGLC: R v Powderham [2001] QCA 429
Case: [2001] QCA 429
Decision Date: 12 October 2001

CaseChat Overview and Summary

The case of R v Powderham involved the appellant, Powderham, who had appealed against the sentence imposed on him following his conviction for an offence under the Penalties and Sentences Act 1992 (Qld). The key issue before the court was whether the sentencing judge was required to make a declaration that Powderham's conviction was a conviction of a serious violent offence, as mandated by the Act. This requirement arose due to the specific provisions of the Act which stipulated that a declaration must be made in certain circumstances when sentencing an offender.

The court was tasked with interpreting the legislative provisions and determining the procedural correctness of the sentencing judge's actions. The appellant argued that the sentencing judge should have declared his conviction as a serious violent offence, but this declaration was not made. The court had to consider whether the absence of this declaration rendered the sentence unlawful or if it was merely a procedural oversight that did not affect the validity of the sentence itself. The court examined the language of the Act and relevant case law to ascertain the consequences of not making the required declaration.

After thorough analysis, the court concluded that the failure to make the declaration did not vitiate the sentence. The court held that the omission was not a fundamental procedural error that would render the sentence invalid. Consequently, the appeal was allowed to the extent of deleting the declaration that Powderham's conviction or sentence was of or for a serious violent offence. The court found that while the declaration was required by the Act, its absence did not invalidate the sentence, thus the sentence remained lawful and enforceable.

Orders

Orders of the court

Application and appeal allowed, to the extent only of deleting the declaration that the applicant’s conviction or sentence on 9 March 2001 was of or for a serious violent offence

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 Powderham [2001] QCA 429
PARTIES:	R v POWDERHAM, Mark Bradley (applicant/appellant)
FILE NO/S:	CA No 72 of 2001 SC No 454 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	12 October 2001
DELIVERED AT:	Brisbane
HEARING DATE:	27 September 2001
JUDGES:	McPherson JA, Chesterman and Douglas JJ Separate reasons for each member of the Court, each concurring as to the orders made
ORDER:	Application and appeal allowed, to the extent only of deleting the declaration that the applicant’s conviction or sentence on 9 March 2001 was of or for a serious violent offence
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – whether the sentencing Judge was required to make a declaration that the conviction was a conviction of a serious violent offence under the Penalties and Sentences Act 1992 (Qld) Corrective Services Act 1988 (Qld), s 166(1), s 187(1), s 190(1) Penalties and Sentences Act 1992 (Qld), s 156A(2), s 161A, s 161B, s 161C. R v Collins [2000] 1 Qd R 45, considered
COUNSEL:	J M McLennan for the applicant/appellant D Meredith for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent