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R v Vaughan

R v Vaughan

Case [2011] QCA 224 9 September 2011

Manifestly Excessive Sentence

Time Extension for Appeal

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Vaughan [2011] QCA 224

PARTIES:

R
v
VAUGHAN, Jason Ronald
(applicant/appellant)

FILE NOS:

CA No 13 of 2011
CA No 216 of 2011
DC No 3360 of 2009
DC No 1974 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence
Application for Extension (Conviction)
Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

9 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

26 August 2011

JUDGES:

Muir JA, Margaret Wilson AJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

In Appeal No 13 of 2011:

1.   The time within which the applicant may appeal against his convictions is extended to 4 February 2011.

2.   The application for leave to appeal against sentence is allowed.

3.   The appeals against conviction and sentence are dismissed.

In Appeal No 216 of 2011:

The application for an extension of time within which to appeal against conviction and sentence is refused.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – PLEAS – GENERAL PLEAS – PLEA OF GUILTY – WITHDRAWAL AND RESTORATION OF PLEA – GENERALLY – where the appellant was convicted on his own pleas of guilty of four counts of using a carriage service to have communications with three female complainants in a way that reasonable persons would regard as being menacing, harassing or offensive – where the appellant pleaded guilty following a pre-trial ruling that count 4 would not be severed from the other counts on the indictment – where the appellant was represented by counsel when he entered his pleas – where the appellant sought to withdraw his guilty pleas on appeal – where the appellant argued that the prosecutor provided false and misleading information to the judge and that defence counsel made unauthorised admissions and concessions – where the appellant seeks an extension of time to appeal against his conviction – whether the application for an extension of time should be granted – whether the appellant should be granted leave to withdraw his pleas of guilty

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – GENERALLY – where the applicant was convicted after a trial of unlawfully stalking a female complainant – where the applicant sought an extension of time within which to appeal against his conviction and sentence – where the applicant had previously appealed to the Court of Appeal against his convictions – where the prior appeal had been dismissed on its merits – whether the Court has jurisdiction to hear a further appeal against those same convictions – whether it is in the interests of justice to grant an extension of time

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the appellant was sentenced to 12 months imprisonment for each of the Commonwealth offences of using a carriage service to menace, harass or cause…

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 Vaughan

Details

AGLC: R v Vaughan [2011] QCA 224
Case: [2011] QCA 224
Decision Date: 9 September 2011

CaseChat Overview and Summary

The appellant, Vaughan, was convicted in the District Court of Queensland on his own pleas of guilty to four counts of using a carriage service to communicate in a menacing, harassing, or offensive manner. Vaughan appealed against his convictions and sentence, arguing that his counsel provided false information and made unauthorised admissions. He also sought an extension of time to appeal against his conviction and sentence. The court was required to determine whether the application for an extension of time should be granted and if the appellant should be allowed to withdraw his pleas of guilty.

The court noted that the appellant had already appealed against his convictions to the Court of Appeal, which was dismissed on its merits. The court had to decide whether it had jurisdiction to hear a further appeal against the same convictions and whether it was in the interests of justice to grant an extension of time. The court also had to consider whether the appellant's counsel disregarded his instructions and if the sentencing judge erroneously took into account the appellant's earlier conviction and sentence for a Queensland stalking offence. The court had to determine whether the sentences were manifestly excessive or inadequate.

The court held that the application for an extension of time to appeal against conviction and sentence should be granted in part, but the application for leave to appeal against sentence was allowed. The appeals against conviction and sentence were dismissed. The court found that the appellant's counsel did not disregard his instructions, and the sentencing judge did not erroneously take into account the appellant's earlier conviction and sentence for a Queensland stalking offence. The court also held that the sentences were not manifestly excessive or inadequate.

The court ordered that the time within which the applicant may appeal against his convictions is extended to 4 February 2011. The application for leave to appeal against sentence is allowed. The appeals against conviction and sentence are dismissed. In Appeal No 216 of 2011, the application for an extension of time within which to appeal against conviction and sentence is refused.

Orders

Orders of the court

In Appeal No 13 of 2011:

1. The time within which the applicant may appeal against his convictions is extended to 4 February 2011.

2. The application for leave to appeal against sentence is allowed.

3. The appeals against conviction and sentence are dismissed.

In Appeal No 216 of 2011:

The application for an extension of time within which to appeal against conviction and sentence is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Vaughan [2011] QCA 224

Most Recent Citation

High Court Bulletin [2012] HCAB 1

Cases citing this decision · 2 of 2 shown

Vaughan v Bell Miller Pty Ltd (t/a Lawler Magill Lawyers
[2019] QCATA 148 Para 9

…6 August 2011, and the decision was given on 9 September 2011. The notices of appeal would have been filed some months before the hearing. [10] [2011] QCA 224.…
High Court Bulletin
[2012] HCAB 1

…Supreme Court of Queensland (Court of Appeal) [2011] QCA 224…

View all 2 citing cases →

Cases cited in this decision · 18 of 18 shown

Lawson v The Queen
[2011] NSWCCA 44

…Multicultural and Indigenous Affairs [2003] FCA 757, cited Lawson v R [2011] NSWCCA 44, cited Liberti v R (1991) 55 A Crim R 120, cited Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, considered Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8, cited R v Basacar [2008] QCA 285, cited R v Birks (1990) 19…
R v RAH
[2011] QCA 35 Para 1

…s.[16] [15] R v Vaughan [2010] QCA 268. [16] Grierson v The King (1938) 60 CLR 431 at 435; R v MAM [2005] QCA 323; R v Nudd [2007] QCA 40 and R v RAH [2011] QCA 35 at 3.…
R v Vaughan
[2010] QCA 268 Para 1

…, apart from being well out of time, is incompetent, an earlier appeal by the applicant[15] having been dismissed on its merits.[16] [15] R v Vaughan [2010] QCA 268. [16] Grierson v The King (1938) 60 CLR 431 at 435; R v MAM [2005] QCA 323; R v Nudd [2007] QCA 40 and R v RAH [2011] QCA 35 at 3.…
R v Mara
[2009] QCA 208 Para 1

…e by s 68 of the Judiciary Act 1903 (Cth) the sentences were concurrent.[13] There is also a common law presumption[14] to that effect. [13] R v Mara [2009] QCA 208 and Putland v The Queen (2004) 218 CLR 74. [14] Hicks v The Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at pp 28…
R v Kirby; Ex parte A-G (Qld)
[2009] QCA 35 Para 1

…cess of one month. The telephone calls ceased only when the complainant moved interstate to avoid the harassment. [9] R v Kirby; ex parte A-G (Qld) [2009] QCA 35. [10][2006] QCA 522. [11][2004] QCA 189.…
R v. Hansen
[2008] QCA 351 Para 1

…e abandonment and re-instate the appeal.[17] Relevant to the determination of such an application are: [17] R v Basacar [2008] QCA 285 and R v Hansen [2008] QCA 351.…
R v Basacar
[2008] QCA 285 Para 1

…an application to set aside the abandonment and re-instate the appeal.[17] Relevant to the determination of such an application are: [17] R v Basacar [2008] QCA 285 and R v Hansen [2008] QCA 351.…
R v Nudd
[2007] QCA 40 Para 1

…een dismissed on its merits.[16] [15] R v Vaughan [2010] QCA 268. [16] Grierson v The King (1938) 60 CLR 431 at 435; R v MAM [2005] QCA 323; R v Nudd [2007] QCA 40 and R v RAH [2011] QCA 35 at 3.…
R v Walton
[2006] QCA 522 Para 1

…The telephone calls ceased only when the complainant moved interstate to avoid the harassment. [9] R v Kirby; ex parte A-G (Qld) [2009] QCA 35. [10][2006] QCA 522. [11][2004] QCA 189.…
R v Gaudry
[2005] QCA 395

…] QCA 285, cited R v Birks (1990) 19 NSWLR 677, considered R v Gaudry [2005] QCA 395, cited R v Hansen [2008] QCA 351, cited R v Kirby; ex parte A-G (Qld) (2009) 193 A Crim R 357; [2009] QCA 35, cited R v Leach [2004] QCA 189, distinguished R v MAM [2005] QCA 323, cited R v Mara (2009) 196 A Crim R 506; [2009] QC…
R v Mam
[2005] QCA 323 Para 1

…he applicant[15] having been dismissed on its merits.[16] [15] R v Vaughan [2010] QCA 268. [16] Grierson v The King (1938) 60 CLR 431 at 435; R v MAM [2005] QCA 323; R v Nudd [2007] QCA 40 and R v RAH [2011] QCA 35 at 3.…
R v Mundraby
[2004] QCA 493

…R v Mara (2009) 196 A Crim R 506; [2009] QCA 208, cited R v Mundraby [2004] QCA 493, considered R v Nudd [2007] QCA 40, cited R v RAH [2011] QCA 35, cited R v Vaughan [2010] QCA 268, cited R v Walton [2006] QCA 522, distinguished TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, considered COUNSEL: The applica…
R v Leach
[2004] QCA 189 Para 1

…ceased only when the complainant moved interstate to avoid the harassment. [9] R v Kirby; ex parte A-G (Qld) [2009] QCA 35. [10][2006] QCA 522. [11][2004] QCA 189.…
Putland v The Queen
[2004] HCA 8

…32; [1995] HCA 41, considered Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8, cited R v Basacar [2008] QCA 285, cited R v Birks (1990) 19 NSWLR 677, considered R v Gaudry [2005] QCA 395, cited R v Hansen [2008] QCA 351, cited R v Kirby; ex parte A-G (Qld) (2009) 193 A Crim R 357; [2009] QCA 35, cited R v…
Hicks v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCA 757 Para 1

…R v Mara [2009] QCA 208 and Putland v The Queen (2004) 218 CLR 74. [14] Hicks v The Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at pp 28, 29.…
TKWJ v The Queen
[2002] HCA 46

…on [2006] QCA 522, distinguished TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, considered COUNSEL: The applicant/appellant in Appeal No 13 of 2011 and Appeal No 216 of 2011 appeared on his own behalf S M Ryan for the respondent in Appeal No 13 of 2011 V A Loury for the respondent in Appeal No 216 of 2011 S…
Meissner v the Queen
[1995] HCA 41

…1991) 55 A Crim R 120, cited Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, considered Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8, cited R v Basacar [2008] QCA 285, cited R v Birks (1990) 19 NSWLR 677, considered R v Gaudry [2005] QCA 395, cited R v Hansen [2008] QCA 351, cited R v Kirby; ex p…
Grierson v The King
[1938] HCA 45

…R (1994) 73 A Crim R 35, cited Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, cited Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757, cited Lawson v R [2011] NSWCCA 44, cited Liberti v R (1991) 55 A Crim R 120, cited Meissner v The Queen (1995) 184 CLR 132; [1995] H…

Legislation cited in this decision · 3

Judiciary Act 1903 (Cth)
68 3 mentions (from Para 1)
Crimes Act 1914 (Cth)
4K 2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
12 2 mentions (from Para 1)

CITATION:	R v Vaughan [2011] QCA 224
PARTIES:	R v VAUGHAN, Jason Ronald (applicant/appellant)
FILE NOS:	CA No 13 of 2011 CA No 216 of 2011 DC No 3360 of 2009 DC No 1974 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence Application for Extension (Conviction) Application for Extension (Sentence & Conviction)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	9 September 2011
DELIVERED AT:	Brisbane
HEARING DATE:	26 August 2011
JUDGES:	Muir JA, Margaret Wilson AJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	In Appeal No 13 of 2011: 1. The time within which the applicant may appeal against his convictions is extended to 4 February 2011. 2. The application for leave to appeal against sentence is allowed. 3. The appeals against conviction and sentence are dismissed. In Appeal No 216 of 2011: The application for an extension of time within which to appeal against conviction and sentence is refused.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – PLEAS – GENERAL PLEAS – PLEA OF GUILTY – WITHDRAWAL AND RESTORATION OF PLEA – GENERALLY – where the appellant was convicted on his own pleas of guilty of four counts of using a carriage service to have communications with three female complainants in a way that reasonable persons would regard as being menacing, harassing or offensive – where the appellant pleaded guilty following a pre-trial ruling that count 4 would not be severed from the other counts on the indictment – where the appellant was represented by counsel when he entered his pleas – where the appellant sought to withdraw his guilty pleas on appeal – where the appellant argued that the prosecutor provided false and misleading information to the judge and that defence counsel made unauthorised admissions and concessions – where the appellant seeks an extension of time to appeal against his conviction – whether the application for an extension of time should be granted – whether the appellant should be granted leave to withdraw his pleas of guilty APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – GENERALLY – where the applicant was convicted after a trial of unlawfully stalking a female complainant – where the applicant sought an extension of time within which to appeal against his conviction and sentence – where the applicant had previously appealed to the Court of Appeal against his convictions – where the prior appeal had been dismissed on its merits – whether the Court has jurisdiction to hear a further appeal against those same convictions – whether it is in the interests of justice to grant an extension of time CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the appellant was sentenced to 12 months imprisonment for each of the Commonwealth offences of using a carriage service to menace, harass or cause…