R v Weiss - [2001] QCA 373

[2001] QCA 373

COURT OF APPEAL

DAVIES JA
WILLIAMS JA
WILSON J

CA No 195 of 2001

THE QUEEN

PETER BRIAN WEISS Applicant

BRISBANE

..DATE 10/09/2001

JUDGMENT

DAVIES JA: I will ask Justice Wilson to deliver her reasons first.

WILSON J: On 14 March 2000 the applicant was sentenced in the District Court at Southport for a series of Commonwealth and State offences of dishonesty. On 4 July 2000 the Court of Appeal set aside the sentences and imposed other sentences.

In summary the sentences imposed by the Court of Appeal were these.

There were 60 Commonwealth offences involving a total of $142,000. They were 43 counts of imposition, two counts of attempted imposition, one count of forgery, one count of uttering, seven counts of obtaining a bank account in a false name and six counts of operating a bank account in a false name. For each of these the Court of Appeal imposed two years imprisonment, the sentences to be served concurrently and to commence on 14 March 2000.

There were 16 State offences involving $138,000 namely four counts of misappropriation with a circumstance of aggravation, eight counts of misappropriation, three counts of false pretences and one count of a wilfully false promise.

With respect to the four counts of misappropriation with circumstances of aggravation the Court of Appeal imposed six years and with respect to all other counts two years.

The sentences for the State offences were to be served concurrently and to commence on 14 March 2000. The sentences for all Commonwealth and State offences were to be served concurrently.

With respect to the State offences the Court of Appeal recommended eligibility for parole after two and a half years. Thus the head sentence on the most serious of the State offences was six years with a recommendation after two and a half years.

The applicant seeks a re-opening of the sentences pursuant to section 188 subsection (i) paragraph (c) of The Penalties and Sentences Act 1992. The Court may re-open the sentence if it was "decided on a clear factual error of substance".

Pursuant to section 188 subsection 5 paragraph (b) of the Penalties and Sentences Act such an application must be made within 28 days after the sentence was imposed or within such further time as the Court may allow. The present application has been made well outside the 28 days but I would allow an extension of time if it had prospects of success.

The applicant submits:

"The Court imposed a sentence whilst being under a mistaken impression on a clear factual error of substance in that the sentence contained a reasonable expectation at the time of sentencing that the applicant would be entitled to remissions in terms of the former regulations of the Corrective Services Regulations 1988 and that the applicant would receive community based orders on or about the dates advised to him by the Department of Corrective Services and that these formed part of the sentence imposed on the applicant."

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 Weiss

Details

AGLC: R v Weiss [2001] QCA 373
Case: [2001] QCA 373
Decision Date: 10/09/2001

CaseChat Overview and Summary

In the matter of R v Weiss, the applicant, Peter Brian Weiss, sought to reopen his sentence imposed by the Court of Appeal. Weiss was sentenced for a series of Commonwealth and State offences of dishonesty, with the Court of Appeal imposing sentences on 76 counts in total. The applicant argued that the Court of Appeal had made a clear factual error when sentencing him, as it had imposed a sentence under the mistaken impression that he would be eligible for remissions under the former Corrective Services Regulations 1988, and that he would receive community-based orders on specific dates. Weiss submitted that the legislative changes which occurred after his sentencing meant that he would not be eligible for these remissions or community-based orders, and that this constituted a clear factual error at the time of sentencing.

The Court of Appeal was required to determine whether the applicant's argument constituted a clear factual error of substance, which would warrant the reopening of his sentence under section 188(i)(c) of the Penalties and Sentences Act 1992. The Court of Appeal considered that the applicant's case was unlike that of MacKenzie, where the Court of Appeal had made a factual error in not appreciating that the Corrections Board could not implement the Court's recommendation as to eligibility for parole. The Court of Appeal found that there was no factual error at the time of sentencing, as the legislative changes which occurred after the sentences were handed down had altered the likely progression towards release into the community. The Court of Appeal also found that the fact that legislative changes were under consideration by Parliament at the time of the Court of Appeal's decision could not constitute a factual error at the time of sentencing.

The Court of Appeal dismissed the applicant's application to reopen his sentence. The Court found that the legislative changes which occurred after the sentences were handed down could not be construed as a factual error by the sentencing Court at the time of sentencing. Similarly, the fact that legislative changes were under consideration by Parliament at the time of the Court of Appeal's decision could not constitute a factual error at the time of sentencing. The Court found that the applicant's case was unlike MacKenzie, as the Court of Appeal had not made a factual error when sentencing the applicant.

The final order of the Court of Appeal was that the application to reopen the sentence was dismissed.

Orders