R v Toohey - [2004] QCA 388

SUPREME COURT OF QUEENSLAND

CITATION:

R v Toohey [2004] QCA 388

PARTIES:

R
v
TOOHEY, Brendan Peter
(applicant)

FILE NO/S:

CA No 245 of 2004
SC No 193 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

18 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

18 October 2004

JUDGES:

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

ORDER:

Application for extension of time within which to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE - where the applicant pleaded guilty to one count of producing cannabis sativa in excess of the schedule amount and was sentenced to a fine of $2,500 to be paid within 12 months - where the applicant sought an extension of time within which to appeal against his sentence - where the learned sentencing judge took into account that the growing of the cannabis sativa was for the applicant's own use and not for commercial use - whether the application for extension of time should be granted

COUNSEL:

Applicant appeared on his own behalf
M R Byrne for respondent

SOLICITORS:

Applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for respondent

THE PRESIDENT: Justice Davies will deliver his reasons first.

DAVIES JA: The applicant pleaded guilty on 28 May 2004 to one of count of producing cannabis sativa in excess of the schedule amount between 29 September 2002 and 1 April 2003. He was sentenced in the Supreme Court to a fine of $2,500 and allowed 12 months to pay. In default, he was sentenced to three months imprisonment.

The applicant purported to appeal against that sentence on 23 July 2004 by which time the period within which to appeal had expired. He applied for an extension of time on 20 August 2004 and this is the hearing of that application.

The applicant's explanation for the delay is that he mistakenly thought that the period within which he had time to appeal commenced, not from the time sentence was imposed, but from the time that a summary charge was disposed of in June 2004. He became aware of his error only on 2 July 2004. There is no reason not to accept his explanation.

It is unnecessary, in my opinion, to consider whether that explanation is an adequate one to explain the applicant's delay because, in my opinion, if an extension of time were granted an appeal against that sentence would not succeed.

The applicant at the time he committed this offence was 34 years of age. He was a cannabis user and was growing two cannabis plants on his property for his own use. One of them, when inspected, was 10 feet tall, the other eight feet tall. Together they had a total weight…

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 Toohey

Details

AGLC: R v Toohey [2004] QCA 388
Case: [2004] QCA 388
Decision Date: 18 October 2004

CaseChat Overview and Summary

The case of R v Toohey involved the applicant, who pleaded guilty to producing cannabis sativa in excess of the scheduled amount. The court sentenced the applicant to a fine of $2,500, payable within 12 months. The applicant subsequently sought an extension of time to appeal against the sentence, arguing that the learned sentencing judge took into account the fact that the cannabis was grown for personal use rather than for commercial purposes. The court was required to determine whether the application for an extension of time should be granted.

The legal issue at the heart of the case was whether the court should grant an extension of time for the applicant to appeal against the sentence. The applicant argued that the learned sentencing judge took into account the personal use of the cannabis as a mitigating factor, which warranted a reconsideration of the sentence. The court needed to assess the merits of this argument and determine if it was sufficient grounds for granting an extension of time.

The court considered the arguments presented by the applicant and found that the learned sentencing judge had already taken into account the personal use of the cannabis as a mitigating factor. The court held that the circumstances of the case did not warrant an extension of time for the applicant to appeal against the sentence. The court emphasised that the primary responsibility for ensuring that an appeal is lodged within the prescribed time limit rests with the applicant and their legal representative. In this case, the court found that the applicant had not demonstrated any exceptional circumstances that would warrant an extension of time.

The court refused the application for an extension of time within which to appeal against the sentence. The court held that the learned sentencing judge had already taken into account the personal use of the cannabis as a mitigating factor, and that the circumstances of the case did not warrant an extension of time. The applicant's appeal against the sentence was therefore dismissed.

Orders

Orders of the court

Application for extension of time within which to appeal against sentence 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 Toohey [2004] QCA 388
PARTIES:	R v TOOHEY, Brendan Peter (applicant)
FILE NO/S:	CA No 245 of 2004 SC No 193 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	18 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	18 October 2004
JUDGES:	McMurdo P, Davies JA and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for extension of time within which to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE - where the applicant pleaded guilty to one count of producing cannabis sativa in excess of the schedule amount and was sentenced to a fine of $2,500 to be paid within 12 months - where the applicant sought an extension of time within which to appeal against his sentence - where the learned sentencing judge took into account that the growing of the cannabis sativa was for the applicant's own use and not for commercial use - whether the application for extension of time should be granted
COUNSEL:	Applicant appeared on his own behalf M R Byrne for respondent
SOLICITORS:	Applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for respondent