R v Ryan - [2003] QCA 9

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ryan [2003] QCA 9

PARTIES:

R
v
RYAN, Shane O’Reilly

(appellant)

FILE NO/S:

CA No 337 of 2002
DC No 62 of 1992

DIVISION:

Court of Appeal

PROCEEDING:

Application for Reopening (Criminal)

ORIGINATING COURT:

District Court

DELIVERED EX TEMPORE ON:

31 January 2003

DELIVERED AT:

Brisbane

HEARING DATE:

31 January 2003

JUDGES:

McMurdo P, Williams JA and Cullinane J
Separate reasons for judgment of each member of the Court; each concurring as to the order made

ORDER:

Application refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR OFFENCES – CRIMINAL LIABILITY – where applicant convicted of armed robbery – whether learned Trial Judge made clear factual error of substance - where application to re-open sentence pursuant to s 188(1)(c) of the Penalties and Sentences Act 1992 (Qld)

Penalties and Sentences Act 1992 (Qld) s 188(1)(c), s 188

R v Cassar ex parte Attorney-General [2001] 1 Qd R, considered

R v Davis [1999] QCA 486; CA No 267 of 1999, 24 November 1999, considered

R v McKenzie [2000] QCA 324; CA No 353 of 1999; 10 August 2000, considered

COUNSEL:

The applicant appeared on his own behalf

D Meredith for the respondent

SOLICITORS:

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

THE PRESIDENT: The applicant seeks to re-open an application for leave to appeal against his sentence in 1992 before this Court under s 188 Penalties and Sentences Act 1992 (Qld). See R v. Ryan [1992] QCA 186, unreported, delivered 10th of September 1992. The applicant contends in his application that he "was wrongly sentenced as the armed offender in an armed robbery due to judicial error" and that this was a clear factual error of substance under s 188(1)(c) Penalties and Sentences Act 1992 (Qld).

The applicant pleaded guilty to armed robbery in company in the District Court at Brisbane on 22 May 1992. He was initially sentenced to eight years imprisonment with a recommendation for parole after 20 months. This sentence was increased to 12 years imprisonment with a recommendation for parole after four years by the Court of Appeal on an Attorney-General's appeal. The applicant claims that, although he has been aware for some time that he was wrongly sentenced on the basis that he was the person carrying a firearm during the robbery, he was unaware of the provisions of s 188 Penalties and Sentences Act 1992 (Qld) until recently.

The applicant's primary complaint is that when he was sentenced for this offence of armed robbery in company and another 48 count indictment for offences of dishonesty, which included another armed robbery in company, the learned primary Judge stated in his reasons for sentence, "You were one of the men who went into the bank armed with a gun." This he contends demonstrates that the learned primary Judge sentenced him on the basis that he himself was armed in the bank. In fact his…

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 Ryan

Details

AGLC: R v Ryan [2003] QCA 9
Case: [2003] QCA 9
Decision Date: 31 January 2003

CaseChat Overview and Summary

In the case of R v Ryan, the applicant, Ryan, sought to have his conviction and sentence reviewed by the court. Ryan had previously been convicted of armed robbery and was appealing the decision, arguing that the trial judge had made a significant factual error. The matter was heard in the Queensland Court of Appeal. The central issue before the court was whether the trial judge had indeed made a substantial factual error that warranted a re-opening of the sentence under section 188(1)(c) of the Penalties and Sentences Act 1992 (Qld).

The court carefully examined the record of the trial to determine if the trial judge's findings were based on an error of fact. The court assessed whether these errors were of such a nature that they could affect the outcome of the case. After a thorough analysis, the court concluded that the trial judge did not make any clear factual errors of substance that would justify a re-opening of the sentence. The evidence presented at the trial was found to be sufficient to support the findings made by the trial judge.

Consequently, the court dismissed Ryan's application to re-open his sentence. The reasoning provided by the court highlighted the importance of ensuring that any alleged factual errors are indeed clear and substantial before a sentence can be reviewed. The court upheld the original conviction and sentence, and the application was refused.

Orders

Orders of the court

Application 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 Ryan [2003] QCA 9
PARTIES:	R v RYAN, Shane O’Reilly (appellant)
FILE NO/S:	CA No 337 of 2002 DC No 62 of 1992
DIVISION:	Court of Appeal
PROCEEDING:	Application for Reopening (Criminal)
ORIGINATING COURT:	District Court
DELIVERED EX TEMPORE ON:	31 January 2003
DELIVERED AT:	Brisbane
HEARING DATE:	31 January 2003
JUDGES:	McMurdo P, Williams JA and Cullinane J Separate reasons for judgment of each member of the Court; each concurring as to the order made
ORDER:	Application refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR OFFENCES – CRIMINAL LIABILITY – where applicant convicted of armed robbery – whether learned Trial Judge made clear factual error of substance - where application to re-open sentence pursuant to s 188(1)(c) of the Penalties and Sentences Act 1992 (Qld) Penalties and Sentences Act 1992 (Qld) s 188(1)(c), s 188 R v Cassar ex parte Attorney-General [2001] 1 Qd R, considered R v Davis [1999] QCA 486; CA No 267 of 1999, 24 November 1999, considered R v McKenzie [2000] QCA 324; CA No 353 of 1999; 10 August 2000, considered
COUNSEL:	The applicant appeared on his own behalf D Meredith for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent