R v Rollason - [2009] QCA 157

SUPREME COURT OF QUEENSLAND

CITATION:

R v Rollason [2009] QCA 157

PARTIES:

R
v
ROLLASON, John Leslie
(applicant)

FILE NO/S:

CA No 375 of 2007
SC No 475 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 June 2009

DELIVERED AT:

Brisbane

HEARING DATE:

5 June 2009

JUDGES:

McMurdo P, and Daubney and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for an extension of time to re-open sentence should be refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – applicant previously successfully appealed to the Court of Appeal on the grounds that his sentence was manifestly excessive – applicant now applies for an extension of time to re-open this sentence on the grounds that there was a "clear factual error" – at the hearing the court referred to the applicant's plea of guilty as "relatively early" during conversation with counsel – in judgment the court referred to the plea as "late" – applicant contends this was a "clear factual error" – whether a clear factual error was made – whether an extension of time to re-open sentence should be allowed

Penalties and Sentences Act 1992 (Qld), s 188, s 188(5)(b)(i), s 188(5)(b)(ii)

R v DC (1999) 109 A Crim R 314; [1999] QCA 486, cited

R v Jenkins, Rollason & Brophy [2008] QCA 369, considered

COUNSEL:

A M Hoare for the applicant
G R Rice for the respondent

SOLICITORS:

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

McMURDO P: This is an application for an extension of time to apply under s 188 Penalties and Sentences Act 1992 (Qld) to re-open the sentence imposed by this Court on the applicant, John Leslie Rollason, on 28 November 2008: see R v Jenkins, Rollason & Brophy.[1] This Court then granted Rollason's application for leave to appeal against sentence and allowed his appeal to the limited extent of setting aside the order that he be imprisoned for a period of 12 years on count 2 of indictment 475 of 2006, and substituting an order that he be imprisoned for a period of 11 years. His original sentence was otherwise confirmed.
[1][2008] QCA 369.

Under s 188(5)(b)(i) and (ii) Penalties and Sentences Act, an application to re-open a sentence under s 188 is to be brought within 28 days of the sentence, or any further time the court may allow. The applicant's explanation for his delay in not bringing this application until April 2009, almost five months after this Court's order was made and reasons published, is unpersuasive. It is as follows. He did not receive the transcript of the appeal hearing until 27 February 2009. Only when his lawyers received the transcript did they identify the factual discrepancy. This application was brought shortly afterwards. Despite this…

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 Rollason

Details

AGLC: R v Rollason [2009] QCA 157
Case: [2009] QCA 157
Decision Date: 12 June 2009

CaseChat Overview and Summary

The case of R v Rollason involved the applicant appealing against the sentence that was previously upheld by the Court of Appeal, which had found the sentence to be manifestly excessive. The applicant now sought an extension of time to re-open the sentence, arguing that there was a "clear factual error" in the court's judgment. The error in question related to the timing of the applicant's plea of guilty, which was described as "relatively early" during the hearing but referred to as "late" in the judgment. The applicant argued that this discrepancy constituted a clear factual error warranting an extension of time.

The central legal issue before the court was whether the discrepancy in the description of the timing of the applicant's plea constituted a "clear factual error" and, if so, whether this error warranted an extension of time to re-open the sentence. The court considered the nature and impact of the alleged error on the overall proceedings and sentence.

In its judgment, the court found that the discrepancy in the description of the timing of the plea did not constitute a "clear factual error" as it did not materially affect the outcome of the proceedings or the sentence. The court held that the plea was indeed "late," and this did not change the court's overall assessment of the sentence. As such, the court refused the application for an extension of time to re-open the sentence. The court's decision was based on the principle that minor discrepancies in the characterisation of facts, which do not affect the fundamental fairness of the proceedings, do not warrant reopening the sentence.

The court's final order was to refuse the application for an extension of time to re-open the sentence. The court emphasised that the alleged error did not meet the threshold for a "clear factual error" and did not materially impact the outcome of the case.

Orders

Orders of the court

Application for an extension of time to re-open sentence should be refused

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 Rollason [2009] QCA 157
PARTIES:	R v ROLLASON, John Leslie (applicant)
FILE NO/S:	CA No 375 of 2007 SC No 475 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	12 June 2009
DELIVERED AT:	Brisbane
HEARING DATE:	5 June 2009
JUDGES:	McMurdo P, and Daubney and Jones JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for an extension of time to re-open sentence should be refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – applicant previously successfully appealed to the Court of Appeal on the grounds that his sentence was manifestly excessive – applicant now applies for an extension of time to re-open this sentence on the grounds that there was a "clear factual error" – at the hearing the court referred to the applicant's plea of guilty as "relatively early" during conversation with counsel – in judgment the court referred to the plea as "late" – applicant contends this was a "clear factual error" – whether a clear factual error was made – whether an extension of time to re-open sentence should be allowed Penalties and Sentences Act 1992 (Qld), s 188, s 188(5)(b)(i), s 188(5)(b)(ii) R v DC (1999) 109 A Crim R 314; [1999] QCA 486, cited R v Jenkins, Rollason & Brophy [2008] QCA 369, considered
COUNSEL:	A M Hoare for the applicant G R Rice for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Commonwealth) for the respondent