R v Tremaine - [2009] QCA 215

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tremaine [2009] QCA 215

PARTIES:

R
v
TREMAINE, Christopher Travis Lee

(applicant)

FILE NO/S:

CA No 346 of 2008
DC No 60 of 2008
DC No 20 of 2008
DC No 164 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

31 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

3 June 2009

JUDGES:

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

ORDERS:

1. The application is granted.

2. The appeal is allowed.

3. The sentence imposed on 28 November 2008 in the District Court at Rockhampton is set aside and instead the following orders are made:

a. The applicant is to serve the remaining 12 months of the suspended imprisonment cumulatively upon the term of 18 months suspended imprisonment ordered to be served by the District Court at Rockhampton on 13 March 2008.

b. The parole eligibility date is fixed at 1 November 2009.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – the applicant was sentenced to serve outstanding suspended imprisonment – the sentencing judge misapprehended the full time release date of the applicant – whether the court should correct the error of the sentencing judge or exercise the sentencing discretion afresh

Penalties and Sentences Act 1992 (Qld), s 148

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, followed

R v Johnson[2007] QCA 433, followed

COUNSEL:

J Trevino for the applicant
J A Wooldridge for the respondent

SOLICITORS:

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

McMURDO P: I agree with Cullinane J's reasons for granting the application for leave to appeal against sentence, allowing the appeal, setting aside the sentence at first instance, and instead ordering that the applicant serve the remaining 12 months of the suspended imprisonment (originally imposed in the District Court at Rockhampton on 19 May 2006) cumulatively upon the 18 months term of the suspended imprisonment (originally imposed on 19 May 2006) ordered to be served by the District Court at Rockhampton on 13 March 2008 and that the parole eligibility date now be fixed at 1 November 2009.

FRASER JA: I have had the advantage of reading the reasons for judgment prepared by Cullinane J. I agree with those reasons and with the orders proposed by his Honour.

CULLINANE J: The applicant seeks leave to appeal against a sentence imposed in the District Court at Rockhampton on 28 November 2008, ordering the applicant to serve the remaining twelve months of the suspended imprisonment of a sentence of three years and six months imprisonment to be suspended after twelve months for an operational period of four years imposed in the District Court at Rockhampton on 19 May 2006. The learned sentencing Judge on 28 November 2008 fixed 12…

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 Tremaine

Details

AGLC: R v Tremaine [2009] QCA 215
Case: [2009] QCA 215
Decision Date: 31 July 2009

CaseChat Overview and Summary

In the case of R v Tremaine, the applicant appealed against his sentence, arguing that the sentencing judge had misapprehended the full time release date. The District Court at Rockhampton had originally sentenced the applicant to 18 months of suspended imprisonment on 13 March 2008. Subsequently, on 28 November 2008, the court imposed a further 12 months of suspended imprisonment to be served cumulatively with the earlier term. The applicant contended that the sentencing judge incorrectly calculated the full time release date, leading to an incorrect sentence. The court was required to determine whether to correct the error or exercise the sentencing discretion afresh.

The primary issue before the court was whether the sentencing judge's misapprehension of the full time release date constituted a basis for interference with the sentence. The court examined whether the error was significant enough to warrant setting aside the sentence and imposing a new one. The applicant argued that the misapprehension led to an unjust outcome, while the prosecution maintained that the sentence was appropriate as imposed. The court had to balance the need for procedural correctness with the potential injustice of an incorrect sentence.

The court found that the sentencing judge's misapprehension of the full time release date was a significant error that warranted interference with the sentence. The court set aside the sentence imposed on 28 November 2008 and exercised its discretion to impose a new sentence. The applicant was to serve the remaining 12 months of the suspended imprisonment cumulatively with the earlier term. The court fixed the parole eligibility date at 1 November 2009, ensuring that the applicant's sentence accurately reflected the intended punishment. This decision highlighted the importance of correctly calculating release dates in sentencing to avoid procedural errors and ensure just outcomes.

The final orders were that the application was granted, the appeal was allowed, and the sentence imposed on 28 November 2008 was set aside. The court ordered that the applicant serve the remaining 12 months of the suspended imprisonment cumulatively with the earlier term. The parole eligibility date was fixed at 1 November 2009. This outcome ensured that the applicant's sentence was corrected to accurately reflect the intended punishment and release date.

Orders

Orders of the court

1. The application is granted.

2. The appeal is allowed.

3. The sentence imposed on 28 November 2008 in the District Court at Rockhampton is set aside and instead the following orders are made:

a. The applicant is to serve the remaining 12 months of the suspended imprisonment cumulatively upon the term of 18 months suspended imprisonment ordered to be served by the District Court at Rockhampton on 13 March 2008.

b. The parole eligibility date is fixed at 1 November 2009.

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 Tremaine [2009] QCA 215
PARTIES:	R v TREMAINE, Christopher Travis Lee (applicant)
FILE NO/S:	CA No 346 of 2008 DC No 60 of 2008 DC No 20 of 2008 DC No 164 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	31 July 2009
DELIVERED AT:	Brisbane
HEARING DATE:	3 June 2009
JUDGES:	McMurdo P, Fraser JA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application is granted. 2. The appeal is allowed. 3. The sentence imposed on 28 November 2008 in the District Court at Rockhampton is set aside and instead the following orders are made: a. The applicant is to serve the remaining 12 months of the suspended imprisonment cumulatively upon the term of 18 months suspended imprisonment ordered to be served by the District Court at Rockhampton on 13 March 2008. b. The parole eligibility date is fixed at 1 November 2009.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – the applicant was sentenced to serve outstanding suspended imprisonment – the sentencing judge misapprehended the full time release date of the applicant – whether the court should correct the error of the sentencing judge or exercise the sentencing discretion afresh Penalties and Sentences Act 1992 (Qld), s 148 AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, followed R v Johnson[2007] QCA 433, followed
COUNSEL:	J Trevino for the applicant J A Wooldridge for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent