R v Sambai - [2003] QCA 142

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sambai [2003] QCA 142

PARTIES:

R
v
SAMBAI, Lucas Londe
(applicant)

FILE NO/S:

CA No 352 of 2002
DC No 1410 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application
Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

31 March 2003

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2003

JUDGES:

McPherson JA, Fryberg and Muir JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Application for leave to appeal against sentence refused
Application to extend time to appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – Appeal and new trial – Appeal against sentence – Appeal by convicted person – Application to reduce sentence – When refused – Offences against the person – Assault occasioning bodily harm whilst armed – Imprisonment for three years suspended after 12 months for an operational period of four years – Not manifestly excessive

R v Kazakoff [1998] QCA 459, followed
R v Burnham and McLean [1999] QCA 099, considered

COUNSEL:

The applicant appeared on his own behalf
S G Bain for the respondent

SOLICITORS:

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

McPHERSON JA: Justice Fryberg will give the first judgment in this matter.

FRYBERG J: The applicant in this matter originally lodged an application for leave to appeal against sentence. That was last year. On the 21 of March this year, the Deputy Registrar received from him a letter enclosing an application for an extension of time within which to appeal against his conviction and a draft notice of appeal against conviction.

The material did not include any affidavit material, nor any substantial supporting material of any description. When the matter was called on today, the applicant handed to the Court some unsigned documents, which set out under the heading, "Affidavit", a version which the applicant wishes to give in support of the application.

It must be remembered that this is a case where in the Court below, the applicant pleaded guilty. The problems which confront a person who has pleaded guilty are substantial. There must be sworn evidence supporting an application for leave to change the sentence and the material before us, simply is not adequate for that task.

The applicant, in order to pursue the belated application, would need to put together proper material, proper evidence, by way of affidavit, setting out a ground for being given the leave which he seeks.

The circumstances are not propitious, since the material put before us seems to indicate that he has very little memory of the events of the night in question.

I need not pursue that matter on the merits, however, because without properly sworn affidavits, the application for leave to appeal against conviction cannot succeed today. In my view, that application must be dismissed, simply on the ground that there is…

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 Sambai

Details

AGLC: R v Sambai [2003] QCA 142
Case: [2003] QCA 142
Decision Date: 31 March 2003

CaseChat Overview and Summary

In the matter of R v Sambai, the defendant was convicted of assault occasioning bodily harm whilst armed. The case came before the court for an appeal against sentence and a request for a new trial. The defendant sought to reduce their sentence, which was three years imprisonment, suspended after 12 months, for an operational period of four years. The court examined the appeal against sentence and dismissed the application to extend time to appeal against the conviction.

The primary legal issue was whether the sentence imposed was manifestly excessive. The court considered the severity of the offence, the defendant's criminal history, and the principles of sentencing. The court examined whether the sentence was disproportionate to the crime and whether there were any compelling reasons to reduce the sentence. The court also considered the defendant's conduct following the conviction and any mitigating factors.

In its reasoning, the court held that the sentence was not manifestly excessive. The court found that the sentence reflected the gravity of the offence and took into account the defendant's criminal history. The court also noted that the sentence provided an opportunity for rehabilitation and reintegration into society. The court was satisfied that the sentence was proportionate to the crime and did not consider it necessary to reduce the sentence. Consequently, the court refused the application for leave to appeal against the sentence and dismissed the application to extend time to appeal against the conviction.

The final orders of the court were that the application for leave to appeal against sentence was refused and the application to extend time to appeal against conviction was dismissed. The defendant's sentence of three years imprisonment, suspended after 12 months, for an operational period of four years, remained in place. The court upheld the sentence as proportionate and appropriate for the offence committed.

Orders

Orders of the court

Application for leave to appeal against sentence refused

Application to extend time to appeal against conviction dismissed

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 Sambai [2003] QCA 142
PARTIES:	R v SAMBAI, Lucas Londe (applicant)
FILE NO/S:	CA No 352 of 2002 DC No 1410 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	31 March 2003
DELIVERED AT:	Brisbane
HEARING DATE:	31 March 2003
JUDGES:	McPherson JA, Fryberg and Muir JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Application for leave to appeal against sentence refused Application to extend time to appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – Appeal and new trial – Appeal against sentence – Appeal by convicted person – Application to reduce sentence – When refused – Offences against the person – Assault occasioning bodily harm whilst armed – Imprisonment for three years suspended after 12 months for an operational period of four years – Not manifestly excessive R v Kazakoff [1998] QCA 459, followed R v Burnham and McLean [1999] QCA 099, considered
COUNSEL:	The applicant appeared on his own behalf S G Bain for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent