R v Voss; ex parte - [2001] QCA 483

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 1999

DIVISION:

Court of Appeal

PROCEEDING:

Sentence appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Ipswich

DELIVERED 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 made

ORDER: 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, considered

COUNSEL:

SG Bain for the appellant
J Thompson for the respondent

SOLICITORS:

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…

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 Voss; ex parte

Details

AGLC: R v Voss; Ex parte A-G (Qld) [2001] QCA 483
Case: [2001] QCA 483
Decision Date: 9 November 2001

CaseChat Overview and Summary

The case involved an appeal against a sentence by the Attorney-General in the High Court of Australia. The appellant, Voss, had been convicted and sentenced by a District Court Judge. The Court of Appeal had previously dealt with the matter, and the District Court Judge had reopened the sentence. The Attorney-General appealed against the new sentence, arguing that there was no clear factual error demonstrated and that the sentence was reopened in error.

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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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 1999
DIVISION:	Court of Appeal
PROCEEDING:	Sentence appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Ipswich
DELIVERED 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 made
ORDER:	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, considered
COUNSEL:	SG Bain for the appellant J Thompson for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent