R v Ronkovich - [2007] QCA 193

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ronkovich [2007] QCA 193

PARTIES:

R
v
RONKOVICH, Brendan Peter
(applicant/appellant)

FILE NO/S:

CA No 41 of 2007
DC No 282 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

8 June 2007

DELIVERED AT:

Brisbane

HEARING DATE:

28 May 2007

JUDGES:

Jerrard JA, White J and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal granted
2. Appeal against sentence allowed
3. Original sentence set aside and in lieu thereof:
(a) Vary the sentence of three and a half years imprisonment on count 1 to be suspended after 10 months with an operational period of four years
(b) Substitute the sentence of three and a half years imprisonment on count 2 with a sentence of 10 months imprisonment followed by a probation order of two years

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERAL PRINCIPLES – where appellant was convicted of one count of grievous bodily harm and one count of sexual assault – where appellant was sentenced to three and a half years imprisonment with the parole eligibility date fixed at 6 December 2007 – where parole eligibility date was unable to be met for administrative reasons outside the appellant's control – whether sentence imposed on clear factual error of substance – whether this caused the sentencing discretion to miscarry

Penalties and Sentences Act 1992 (Qld) s 13, s 160D, s 160E, s 188(1)(c)

R v Daly[2004] QCA 385; CA No 218 of 2004, 15 October 2004, cited
R v Dillon; ex parte A-G (Qld) [2006] QCA 521; CA No 178 of 2006, 8 December 2006, applied
R v Hood [2005] 2 Qd R 54, applied
R v Mackenzie [2002] 1 Qd R 410, cited

COUNSEL:

The appellant appeared on his own behalf
M J Copley for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

JERRARD JA: I agree with the reasons and orders proposed by Atkinson J. I add only that I would express the reason for re-sentencing as in R v Daly [2004] QCA 385 at [6], [9], and [31]. That is that the incorrect assumption Mr Ronkovich would be considered for parole on the eligibility date fixed by the judge means the sentencing discretion miscarried, and some other sentence should have been passed. The problem is simply that too many other prisoners are listed to do the courses Mr Ronkovich is required to do before he will be considered for parole.

WHITE J: I have read the reasons of Atkinson J and agree with them and with the orders which she proposes.

ATKINSON J: The applicant seeks leave to appeal a sentence imposed upon him in the District Court…

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 Ronkovich

Details

AGLC: R v Ronkovich [2007] QCA 193
Case: [2007] QCA 193
Decision Date: 8 June 2007

CaseChat Overview and Summary

The case of R v Ronkovich involves an appeal against a sentence imposed on the appellant, who was convicted of grievous bodily harm and sexual assault. The appellant was sentenced to three and a half years imprisonment for each offence, with parole eligibility set for 6 December 2007. However, due to administrative reasons beyond the appellant's control, parole eligibility could not be met. The central legal issues for the court to determine were whether the sentence imposed was based on a clear factual error of substance and if this error caused the sentencing discretion to miscarry.

The court held that the sentence was indeed based on a clear factual error of substance, as the parole eligibility date could not be met due to administrative reasons. This misapprehension led to an overestimation of the severity of the sentence, as the appellant would have been eligible for parole much earlier. Consequently, the court found that the sentencing discretion had miscarried. The court noted that the trial judge had taken into account the parole eligibility date as a significant factor in determining the length of the sentence. The error in the date rendered the sentence disproportionate and unjust, warranting the intervention of the appellate court.

In light of these findings, the court granted the appellant leave to appeal and allowed the appeal against the sentence. The original sentence was set aside, and a new sentence was imposed in its place. The sentence for the grievous bodily harm offence was varied to a three and a half year imprisonment term, suspended after 10 months, with an operational period of four years. The sentence for the sexual assault offence was substituted with a 10 month imprisonment term followed by a two-year probation order. The court's decision aimed to rectify the error and ensure a fair and proportionate sentence for the appellant's crimes.

Orders

Orders of the court

1. Application for leave to appeal granted

2. Appeal against sentence allowed

3. Original sentence set aside and in lieu thereof:

(a) Vary the sentence of three and a half years imprisonment on count 1 to be suspended after 10 months with an operational period of four years

(b) Substitute the sentence of three and a half years imprisonment on count 2 with a sentence of 10 months imprisonment followed by a probation order of two years

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 Ronkovich [2007] QCA 193
PARTIES:	R v RONKOVICH, Brendan Peter (applicant/appellant)
FILE NO/S:	CA No 41 of 2007 DC No 282 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	8 June 2007
DELIVERED AT:	Brisbane
HEARING DATE:	28 May 2007
JUDGES:	Jerrard JA, White J and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal granted 2. Appeal against sentence allowed 3. Original sentence set aside and in lieu thereof: (a) Vary the sentence of three and a half years imprisonment on count 1 to be suspended after 10 months with an operational period of four years (b) Substitute the sentence of three and a half years imprisonment on count 2 with a sentence of 10 months imprisonment followed by a probation order of two years
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERAL PRINCIPLES – where appellant was convicted of one count of grievous bodily harm and one count of sexual assault – where appellant was sentenced to three and a half years imprisonment with the parole eligibility date fixed at 6 December 2007 – where parole eligibility date was unable to be met for administrative reasons outside the appellant's control – whether sentence imposed on clear factual error of substance – whether this caused the sentencing discretion to miscarry Penalties and Sentences Act 1992 (Qld) s 13, s 160D, s 160E, s 188(1)(c) R v Daly[2004] QCA 385; CA No 218 of 2004, 15 October 2004, cited R v Dillon; ex parte A-G (Qld) [2006] QCA 521; CA No 178 of 2006, 8 December 2006, applied R v Hood [2005] 2 Qd R 54, applied R v Mackenzie [2002] 1 Qd R 410, cited
COUNSEL:	The appellant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent