R v Warren - [2011] QCA 89

SUPREME COURT OF QUEENSLAND

CITATION:

R v Warren [2011] QCA 89

PARTIES:

R
v
WARREN, Robert John
(applicant/appellant)

FILE NO/S:

CA No 12 of 2011
SC No 5 of 2007
SC No 8 of 2007
SC No 47 of 2007
SC No 48 of 2007
SC No 30 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

10 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2011

JUDGES:

Fraser JA, Atkinson and Peter Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application for extension of time to file an application for leave to appeal against sentence granted.

2.   Application for leave to appeal against sentence granted.

3.   Appeal against sentence allowed.

4.   Sentence varied to the extent of reducing the sentence on the count of producing a dangerous drug on 12 May 2005 to four years imprisonment, removing his parole release date and fixing his parole eligibility date as 13 April 2007.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his plea of guilty of multiple drug offences, including one count of producing a dangerous drug exceeding 2 grams, two driving offences and two weapons offences – where the applicant was sentenced to a head sentence of five years imprisonment on the producing count and concurrent sentences of two and three years imprisonment on the lesser counts – where the applicant had already served 698 days in pre-sentence custody which could not be declared as time spent under the sentence – where the applicant contends that the learned sentencing judge failed to take account of the time already spent in fixing the head sentence – whether the sentence imposed was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant filed an application for an extension of time within which to appeal some three years and nine months out of time – where the applicant says he only recently realised the effect of the sentence – whether the application for an extension should be granted

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the learned sentencing judge fixed a parole eligibility date with respect to the sentence of five years imprisonment and a parole release date with respect to the lesser sentences of imprisonment – whether a parole release date could be set

Penalties and Sentences Act 1992 (Qld), s 159A, s 160A(1), s 160B, s160C, s 160D

Puschenjak v Wade[2002] QCA 190, cited
R v Boyd[2001] QCA 421, considered
R v Campbell[2002] QCA 109, considered
R v Cromwell [2008] QCA 191, considered
R v Forsythe[2011] QCA 71,…

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 Warren

Details

AGLC: R v Warren [2011] QCA 89
Case: [2011] QCA 89
Decision Date: 10 May 2011

CaseChat Overview and Summary

The case of R v Warren involved the applicant, who had been convicted on his plea of guilty to multiple drug, driving, and weapons offences. He was sentenced to various terms of imprisonment, including a head sentence of five years for producing a dangerous drug exceeding 2 grams, and concurrent sentences of two and three years for the lesser counts. The applicant had already served 698 days in pre-sentence custody, which could not be declared as time spent under the sentence. The applicant appealed against his sentence, arguing that it was manifestly excessive because the sentencing judge failed to take into account the time he had already served in custody.

The court considered whether the sentence imposed was manifestly excessive and whether the applicant's application for an extension of time to appeal was valid. The applicant's notice of appeal was filed three years and nine months out of time, and he argued that he only recently realised the effect of the sentence. The court had to determine if the application for an extension should be granted. Additionally, the court examined whether a parole release date could be set for the lesser sentences of imprisonment.

The court granted the application for an extension of time to file an application for leave to appeal against sentence. The court found that the sentence imposed was manifestly excessive because the sentencing judge did not take into account the time the applicant had already served in custody. The court allowed the appeal against sentence and varied the sentence on the count of producing a dangerous drug on 12 May 2005 to four years imprisonment, removing the parole release date and fixing the parole eligibility date as 13 April 2007.

Orders

Orders of the court

1. Application for extension of time to file an application for leave to appeal against sentence granted.

2. Application for leave to appeal against sentence granted.

3. Appeal against sentence allowed.

4. Sentence varied to the extent of reducing the sentence on the count of producing a dangerous drug on 12 May 2005 to four years imprisonment, removing his parole release date and fixing his parole eligibility date as 13 April 2007.

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 Warren [2011] QCA 89
PARTIES:	R v WARREN, Robert John (applicant/appellant)
FILE NO/S:	CA No 12 of 2011 SC No 5 of 2007 SC No 8 of 2007 SC No 47 of 2007 SC No 48 of 2007 SC No 30 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	10 May 2011
DELIVERED AT:	Brisbane
HEARING DATE:	11 April 2011
JUDGES:	Fraser JA, Atkinson and Peter Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for extension of time to file an application for leave to appeal against sentence granted. 2. Application for leave to appeal against sentence granted. 3. Appeal against sentence allowed. 4. Sentence varied to the extent of reducing the sentence on the count of producing a dangerous drug on 12 May 2005 to four years imprisonment, removing his parole release date and fixing his parole eligibility date as 13 April 2007.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his plea of guilty of multiple drug offences, including one count of producing a dangerous drug exceeding 2 grams, two driving offences and two weapons offences – where the applicant was sentenced to a head sentence of five years imprisonment on the producing count and concurrent sentences of two and three years imprisonment on the lesser counts – where the applicant had already served 698 days in pre-sentence custody which could not be declared as time spent under the sentence – where the applicant contends that the learned sentencing judge failed to take account of the time already spent in fixing the head sentence – whether the sentence imposed was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant filed an application for an extension of time within which to appeal some three years and nine months out of time – where the applicant says he only recently realised the effect of the sentence – whether the application for an extension should be granted CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the learned sentencing judge fixed a parole eligibility date with respect to the sentence of five years imprisonment and a parole release date with respect to the lesser sentences of imprisonment – whether a parole release date could be set Penalties and Sentences Act 1992 (Qld), s 159A, s 160A(1), s 160B, s160C, s 160D Puschenjak v Wade[2002] QCA 190, cited R v Boyd[2001] QCA 421, considered R v Campbell[2002] QCA 109, considered R v Cromwell [2008] QCA 191, considered R v Forsythe[2011] QCA 71,…