R v White - [2012] QCA 115

SUPREME COURT OF QUEENSLAND

CITATION:

R v White [2012] QCA 115

PARTIES:

R
v
WHITE, Gary William
(applicant)

FILE NO/S:

CA No 57 of 2012
DC No 83 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

1 May 2012

DELIVERED AT:

Brisbane

HEARING DATE:

1 May 2012

JUDGES:

Muir JA and Fryberg and Martin JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused

CATCHWORDS:

APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the applicant plead guilty to robbery with personal violence – where the applicant was sentenced to five years imprisonment with fixed parole eligibility – where the applicant applied for leave to appeal against sentence – where the applicant then abandoned the application – where the applicant had an extensive criminal history with convictions for similar offences – where the applicant was on parole and probation at the time of committing the offence – where a psychologist’s report indicated the applicant was of low IQ – where the applicant alleged he suffered from Down Syndrome and other medical conditions – where there was no medical evidence to support his assertions – whether the notice of abandonment should be set aside and an extension of time within which to appeal against sentence granted

R v Blake[2010] QCA 272, distinguished
R v Mallon[1997] QCA 58, distinguished
R v Mickelo[1995] QCA 468, distinguished

COUNSEL:

The applicant appeared on his own behalf
B J Merrin for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: The applicant was sentenced, after pleading guilty to robbery with personal violence, to five years imprisonment with a parole eligibility fixed at 22 August 2012; a date 20 months from the expiry of a sentence upon which the five year term was made cumulative. 111 days spent in pre-sentence custody between 21 December 2010 and 10 April 2011 were declared time already served under the sentence.

The applicant was 46 years of age at the time of the commission of the offence. A psychologist's report dated 7 April 2011, obtained for the purposes of sentencing, recorded that testing performed by the psychologist "reveals a rather low IQ and a poor capacity to deal with and learn new material". The psychologist recorded also that he was informed by the applicant that he suffered recurring severe depression, he had Down syndrome and had suffered two serious head injuries. There was no medical evidence to support any of these assertions.

The sentencing judge expressed scepticism about the Down syndrome claim, drawing attention to the applicant's employment history. The applicant's counsel accepted that the applicant was "an unreliable historian" and did not contradict the sentencing judge's assertion that "there was absolutely no basis" for the applicant's claim to…

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 White

Details

AGLC: R v White [2012] QCA 115
Case: [2012] QCA 115
Decision Date: 1 May 2012

CaseChat Overview and Summary

The appellant in this case pleaded guilty to charges of robbery with personal violence in the Supreme Court of Queensland. He was subsequently sentenced to five years in prison, with fixed parole eligibility. The appellant then applied for leave to appeal against the sentence. After initially lodging the application, the appellant abandoned it without any legal representation. The appellant had a significant criminal history, with previous convictions for similar offences. At the time of the current offence, he was already on parole and probation. Additionally, a psychologist's report suggested that the appellant had a low IQ, and he claimed to suffer from Down Syndrome and other medical conditions, although there was no medical evidence to substantiate these claims.

The primary legal issue before the court was whether the notice of abandonment of the appeal should be set aside and whether an extension of time to appeal against the sentence should be granted. The court considered the appellant's criminal history, his status at the time of the offence, and the psychologist's report. The court also weighed the appellant's claims of medical conditions against the lack of supporting evidence.

The court ultimately decided that the notice of abandonment should not be set aside and that an extension of time to appeal against the sentence should not be granted. The court noted the appellant's extensive criminal history and his status on parole and probation at the time of the offence. The court also highlighted the lack of medical evidence to support the appellant's claims of Down Syndrome and other conditions. Consequently, the application was refused, and the appeal was dismissed.

Orders

Orders of the court

Application refused

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 White [2012] QCA 115
PARTIES:	R v WHITE, Gary William (applicant)
FILE NO/S:	CA No 57 of 2012 DC No 83 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	1 May 2012
DELIVERED AT:	Brisbane
HEARING DATE:	1 May 2012
JUDGES:	Muir JA and Fryberg and Martin JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused
CATCHWORDS:	APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the applicant plead guilty to robbery with personal violence – where the applicant was sentenced to five years imprisonment with fixed parole eligibility – where the applicant applied for leave to appeal against sentence – where the applicant then abandoned the application – where the applicant had an extensive criminal history with convictions for similar offences – where the applicant was on parole and probation at the time of committing the offence – where a psychologist’s report indicated the applicant was of low IQ – where the applicant alleged he suffered from Down Syndrome and other medical conditions – where there was no medical evidence to support his assertions – whether the notice of abandonment should be set aside and an extension of time within which to appeal against sentence granted R v Blake[2010] QCA 272, distinguished R v Mallon[1997] QCA 58, distinguished R v Mickelo[1995] QCA 468, distinguished
COUNSEL:	The applicant appeared on his own behalf B J Merrin for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent