R v Rasmussen; ex parte - [2000] QCA 91

SUPREME COURT OF QUEENSLAND

CITATION: R v Rasmussen; ex parte A-G [2000] QCA 91

PARTIES:
R
v
RASMUSSEN, Grant Peter
(respondent)

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S: CA No 288 of 1999
MC No PA3742-64 of 1999
MC No PA3840-48 of 1999

DIVISION: Court of Appeal

PROCEEDING: Sentence Appeal by Attorney-General (Qld)

ORIGINATING COURT:
Magistrates Court at Toowoomba

DELIVERED ON: 24 March 2000

DELIVERED AT: Brisbane

HEARING DATE: 14 March 2000

JUDGES: McPherson JA, Moynihan SJA, Atkinson J
Judgment of the Court

ORDER:
1.   Appeal against sentence allowed.

2.   Sentences imposed set aside.

3.   Respondent sentenced to a term of imprisonment of one year to be served by way of an intensive correction order on the following conditions:

(a) the conditions set out in s 114 of the Penalties and Sentences Act 1992 (Qld);

(b)     that the respondent make restitution in the amount of $4,356 within 12 months; and

(c)     that the respondent only reside at an address approved in advance by a Community Corrections Officer.

CATCHWORDS:
CRIMINAL LAW – JURIDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PURPOSE OF SENTENCE – RELEVANT PRINCIPLES – where a non-custodial sentence was imposed to enable the offender to pay a drug debt – whether this was an irrelevant consideration in respect of sentencing

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PURPOSE OF SENTENCE – REHABILITATION – whether a term of imprisonment or an intensive correction order was appropriate in the circumstances

Criminal Code (Qld), s 398, s 408C(1)(a)(i), s 408C(1)(b), s 419(4) and s 421(2)

Penalties and Sentencing Act 1992 (Qld), s 114

COUNSEL: Mr D Bullock for the appellant
Mr B G Devereaux for the respondent

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

THE COURT: The Attorney-General appeals against sentences of three years probation on the usual conditions together with a condition that the respondent only reside at an address approved by a Community Corrections Officer. He was also ordered to make restitution in an amount of $4,356 within 12 months. The sentences were imposed in respect of a number of offences. The appellant contended for a sentence of imprisonment in the 12 to 18 months range.

The offences were committed as a consequence of the respondent’s drug dependency, specifically to generate funds to repay a debt of $16,000 to a person who had regularly supplied him with drugs. By the time the respondent came to be sentenced $820 remained unpaid.

The respondent is a qualified electrician born on 4 May 1976. He elected for summary trial and pleaded guilty to six offences of committing an indictable offence whilst in a dwelling (s 419(4) and s 421(2) of the Criminal Code), to one offence of stealing (s 398 of the Criminal Code) and to twenty five offences of fraud (s 408C(1)(a)(i) and s 408C(1)(b) 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 Rasmussen; ex parte

Details

AGLC: R v Rasmussen; ex parte [2000] QCA 91
Case: [2000] QCA 91
Decision Date: 24 March 2000

CaseChat Overview and Summary

The case of R v Rasmussen involved the respondent who was sentenced by the District Court of Queensland. The respondent was convicted of drug-related offences and was initially sentenced to a non-custodial sentence which allowed the respondent to pay off a drug debt. The appeal was lodged against the sentence, arguing that the consideration of the drug debt was irrelevant to the sentencing process. The appeal raised questions regarding the factors that should be taken into account during sentencing, specifically whether the purpose of the sentence was to enable the offender to pay off a drug debt.

The court was required to determine whether the non-custodial sentence was appropriate and if the consideration of the drug debt was a relevant factor in the sentencing process. The court also had to decide whether a term of imprisonment or an intensive correction order was more appropriate in the circumstances. The court had to consider the principles of sentencing, specifically the purpose of the sentence and the principles of rehabilitation.

In its decision, the court found that the non-custodial sentence imposed was not appropriate as it allowed the respondent to pay off a drug debt. The court held that the consideration of the drug debt was irrelevant in the sentencing process. The court found that an intensive correction order was more appropriate in the circumstances, taking into account the principles of sentencing and the need for rehabilitation. The court set aside the sentences imposed and sentenced the respondent to a term of imprisonment of one year to be served by way of an intensive correction order. The court also imposed additional conditions for the respondent to make restitution and to only reside at an approved address.

The final orders of the court were to allow the appeal against the sentence, set aside the sentences imposed, and sentence the respondent to a term of imprisonment of one year to be served by way of an intensive correction order. The court also imposed additional conditions for the respondent to make restitution and to only reside at an approved address.

Orders

Orders of the court

1. Appeal against sentence allowed.

2. Sentences imposed set aside.

3. Respondent sentenced to a term of imprisonment of one year to be served by way of an intensive correction order on the following conditions:

(a) the conditions set out in s 114 of the Penalties and Sentences Act 1992 (Qld);

(b) that the respondent make restitution in the amount of $4,356 within 12 months; and

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 Rasmussen; ex parte A-G [2000] QCA 91
PARTIES:	R v RASMUSSEN, Grant Peter (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 288 of 1999 MC No PA3742-64 of 1999 MC No PA3840-48 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by Attorney-General (Qld)
ORIGINATING COURT:	Magistrates Court at Toowoomba
DELIVERED ON:	24 March 2000
DELIVERED AT:	Brisbane
HEARING DATE:	14 March 2000
JUDGES:	McPherson JA, Moynihan SJA, Atkinson J Judgment of the Court
ORDER:	1. Appeal against sentence allowed. 2. Sentences imposed set aside. 3. Respondent sentenced to a term of imprisonment of one year to be served by way of an intensive correction order on the following conditions: *(a) the conditions set out in s 114 of the Penalties and Sentences Act* 1992 (Qld); (b) that the respondent make restitution in the amount of $4,356 within 12 months; and (c) that the respondent only reside at an address approved in advance by a Community Corrections Officer.**
CATCHWORDS:	CRIMINAL LAW – JURIDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PURPOSE OF SENTENCE – RELEVANT PRINCIPLES – where a non-custodial sentence was imposed to enable the offender to pay a drug debt – whether this was an irrelevant consideration in respect of sentencing CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PURPOSE OF SENTENCE – REHABILITATION – whether a term of imprisonment or an intensive correction order was appropriate in the circumstances Criminal Code (Qld), s 398, s 408C(1)(a)(i), s 408C(1)(b), s 419(4) and s 421(2) Penalties and Sentencing Act 1992 (Qld), s 114
COUNSEL:	Mr D Bullock for the appellant Mr B G Devereaux for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent