R v Ramsay - [2010] QCA 276

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ramsay [2010] QCA 276

PARTIES:

R
v
RAMSAY, Dean Gordon Wilson
(applicant)

FILE NO/S:

CA No 29 of 2010
DC No 241 of 2009
DC No 245 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

15 October 2010

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2010

JUDGES:

Fraser and White JJA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to one count of burglary and stealing, one count of stealing and one count of armed robbery – where the applicant committed the stealing and armed robbery whilst on parole for earlier offences, including armed robbery – where s 156A of the Penalties and Sentences Act 1992 (Qld) made it mandatory for any sentence imposed for the armed robbery to be served cumulatively with any other term of imprisonment the applicant was liable to serve – where the applicant was liable to serve time for the previous armed robbery and other unpaid fines – where the learned sentencing judge expressed the sentence as being cumulative upon the sentence for the previous armed robbery only – where the learned sentencing judge did not take the further periods of imprisonment and time at large into account – where the factual error is in the applicant’s favour – where the Crown does not seek leave to appeal against sentence – where there was a possibility of a more severe sentence being imposed on appeal – where counsel for the applicant indicated that he held instructions to abandon the appeal if the Court intimated that a more severe sentence was likely to be imposed – whether the learned sentencing judge erred in failing to give proper consideration to the effect of s 156A of Penalties and Sentences Act 1992 (Qld) in the circumstances – whether there is utility in the appeal sufficient to justify the grant of leave to appeal

Criminal Code 1899 (Qld) s 668D, s 668E(3)
Penalties and Sentences Act 1992 (Qld), s 156A, s 188

AB v The Queen (1999) 198 CLR 111, [1999] HCA 46, cited
Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited
R v Burke [2002] NSWCCA 353, cited
R v KAC [2010] QCA 39, cited
R v Moodie [1999] QCA 125, cited
R v Moss [1999] QCA 426, cited
R v Suey [2005] QCA 27, cited

COUNSEL:

J P Benjamin for the applicant
M B Lehane for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

[1] FRASER JA: In accordance with the Court’s usual practice, counsel presented full argument on the footing that if leave…

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 Ramsay

Details

AGLC: R v Ramsay [2010] QCA 276
Case: [2010] QCA 276
Decision Date: 15 October 2010

CaseChat Overview and Summary

The case of R v Ramsay involved the applicant who had pleaded guilty to multiple offences, including burglary, stealing, and armed robbery. The applicant had committed the stealing and armed robbery while on parole for prior offences, including armed robbery. The court's task was to determine whether the sentencing judge erred in their application of the law and whether there was sufficient utility in the appeal to warrant leave to appeal.

The central legal issue before the court was whether the sentencing judge erred in failing to consider the effect of section 156A of the Penalties and Sentences Act 1992 (Qld), which mandates that any sentence imposed for the armed robbery must be served cumulatively with any other term of imprisonment the applicant was liable to serve. The applicant was also liable to serve time for a previous armed robbery and unpaid fines. The sentencing judge expressed the sentence as cumulative only upon the sentence for the previous armed robbery, neglecting to account for further periods of imprisonment and time at large. The factual error was in the applicant's favour, and the Crown did not seek leave to appeal against the sentence. The possibility of a more severe sentence being imposed on appeal was considered, as counsel for the applicant indicated they would abandon the appeal if the court suggested a harsher sentence was likely.

The court held that the sentencing judge did not err in their application of section 156A. The court reasoned that the error in the factual matrix was in the applicant’s favour, and the Crown did not seek to appeal the sentence. Furthermore, the applicant's counsel indicated that they would abandon the appeal if the court suggested a more severe sentence was likely. The court concluded that there was insufficient utility in the appeal to justify the grant of leave to appeal. Consequently, the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

Application for leave to appeal against sentence 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 Ramsay [2010] QCA 276
PARTIES:	R v RAMSAY, Dean Gordon Wilson (applicant)
FILE NO/S:	CA No 29 of 2010 DC No 241 of 2009 DC No 245 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	15 October 2010
DELIVERED AT:	Brisbane
HEARING DATE:	27 September 2010
JUDGES:	Fraser and White JJA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to one count of burglary and stealing, one count of stealing and one count of armed robbery – where the applicant committed the stealing and armed robbery whilst on parole for earlier offences, including armed robbery – where s 156A of the Penalties and Sentences Act 1992 (Qld) made it mandatory for any sentence imposed for the armed robbery to be served cumulatively with any other term of imprisonment the applicant was liable to serve – where the applicant was liable to serve time for the previous armed robbery and other unpaid fines – where the learned sentencing judge expressed the sentence as being cumulative upon the sentence for the previous armed robbery only – where the learned sentencing judge did not take the further periods of imprisonment and time at large into account – where the factual error is in the applicant’s favour – where the Crown does not seek leave to appeal against sentence – where there was a possibility of a more severe sentence being imposed on appeal – where counsel for the applicant indicated that he held instructions to abandon the appeal if the Court intimated that a more severe sentence was likely to be imposed – whether the learned sentencing judge erred in failing to give proper consideration to the effect of s 156A of Penalties and Sentences Act 1992 (Qld) in the circumstances – whether there is utility in the appeal sufficient to justify the grant of leave to appeal Criminal Code 1899 (Qld) s 668D, s 668E(3) Penalties and Sentences Act 1992 (Qld), s 156A, s 188 AB v The Queen (1999) 198 CLR 111, [1999] HCA 46, cited Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited R v Burke [2002] NSWCCA 353, cited R v KAC [2010] QCA 39, cited R v Moodie [1999] QCA 125, cited R v Moss [1999] QCA 426, cited R v Suey [2005] QCA 27, cited
COUNSEL:	J P Benjamin for the applicant M B Lehane for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent