SUPREME COURT OF QUEENSLAND
CITATION:
R v Voss; ex parte A-G (Qld) [2001] QCA 483
PARTIES:
R
v
VOSS, Daniel Robert
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)FILE NO/S:
CA No 160 of 2001
DC No 400 of 1999DIVISION:
Court of Appeal
PROCEEDING:
Sentence appeal by A-G (Qld)
ORIGINATING COURT:
District Court at IpswichDELIVERED ON:
9 November 2001
DELIVERED AT:
Brisbane
HEARING DATE:
16 October 2001
JUDGES:
McMurdo P, Davies JA, Ambrose J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDER: Appeal allowed. Set aside the orders made and sentence imposed in the District Court at Ipswich on 23 May 2001. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AFTER INQUIRY AND CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where District Court Judge re-opened sentence – where matter previously decided by Court of Appeal – Attorney-General’s appeal against new sentence – whether clear factual error shown – whether sentence re-opened in error
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – re-opening sentence – time for determining clear factual error – determined at time of original sentence
Penalties and Sentences Act 1992 (Qld), s 161, s 161(1), s 188, s 188(1), s 188(1)(c) and s 181(1)(e)
R v Ainsworth [2000] QCA 163, CA No 26 of 2000, 5 May 2000, considered
R v Cassar; ex parte Attorney-General (Qld) [2001] QCA 300, CA No 95 of 2001, 31 July 2001, considered
R v DC [1999] QCA 486, CA No 267 of 1999, 24 November 1999, considered
R v Kelly [2001] QCA 292, CA No 106 of 2001, 9 July 2001, considered
R v McKenzie [2000] QCA 324, CA No 353 of 2000, 11 August 2000, considered
R v Skedgwell [1999] 2 Qd R 97, considered
R v Voss [2000] QCA 176, CA No 33 of 2000, 12 May 2000, consideredCOUNSEL:
SG Bain for the appellant
J Thompson for the respondentSOLICITORS:
Director of Public Prosecutions (Queensland) for the appellant
Legal Aid Queensland for the respondent
McMURDO P: I have read the draft reasons for judgment of Ambrose J in which the relevant facts and issues are set out.
The respondent was first sentenced on 21 January 2000 by his Honour Judge Pratt QC to an effective term of 3 years imprisonment for an assortment of offences. His application for leave to appeal against that sentence was refused[1]. The main contention in that application was that the sentencing judge gave no or insufficient weight to the time the applicant had spent in pre-sentence custody which was not within s 161(1) Penalties and Sentences Act 1992 (Qld) ("the Act"). This Court determined that the learned judge had given sufficient weight to that factor. After referring to authority which established the proposition that pre-trial custody not within s 161 of the Act should nevertheless be taken into account in sentencing under a general discretion and…
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- AGLC
- R v Voss; Ex parte A-G (Qld) [2001] QCA 483
- Case
- [2001] QCA 483
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the District Court Judge had the authority to reopen the sentence after it had already been determined by the Court of Appeal. Additionally, the Court had to decide if there was a clear factual error that warranted the reopening of the sentence. The Court also needed to determine the correct time for assessing whether there was a clear factual error, which was at the time of the original sentence.
The High Court found that the District Court Judge did not have the jurisdiction to reopen the sentence after it had been determined by the Court of Appeal. The Court held that the time for determining a clear factual error was at the time of the original sentence. Given these findings, the Court concluded that the reopening of the sentence was in error and allowed the appeal. The orders made and sentence imposed by the District Court on 23 May 2001 were set aside.
Orders
Orders of the court
Appeal allowed. Set aside the orders made and sentence imposed in the District Court at Ipswich on 23 May 2001.
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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