R v Whittaker - [2011] QCA 237

SUPREME COURT OF QUEENSLAND

CITATION:

R v Whittaker [2011] QCA 237

PARTIES:

R
v
WHITTAKER, Ziyaad
(applicant)

FILE NO/S:

CA No 170 of 2011
DC No 601 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

16 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

26 August 2011

JUDGES:

Margaret McMurdo P, Chesterman JA and North J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for an extension of time to appeal against sentence is refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant pleaded guilty to doing grievous bodily harm with intent – where the applicant was sentenced to eight years imprisonment with a declaration that the offence was a serious violent offence under Pt 9A Penalties and Sentences Act 1992 (Qld) – where the applicant seeks an extension of time to appeal against sentence on the grounds that the sentence imposed was manifestly excessive and did not reflect his post-traumatic stress disorder and other mitigating features – whether the application for an extension of time should be granted

Criminal Practice Rules 1999 (Qld), r 70(3)
Penalties and Sentences Act 1992 (Qld), Pt 9A

R v Bruce King, unreported, District Court of Queensland, Durward SC DCJ, 29 September 2010, distinguished
R v Douglas [2004] QCA 1, considered
R v Hansen [2008] QCA 351, cited
R v Nguyen [2006] QCA 542, considered

COUNSEL:

The applicant appeared on his own behalf
D L Meredith for the respondent

SOLICITORS:

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

MARGARET McMURDO P: The applicant, Ziyaad Whittaker, pleaded guilty in the Mackay District Court on 5 November 2009 to doing grievous bodily harm with intent on 8 March 2009. On 3 December 2009, he filed an application for leave to appeal against sentence but on 18 February 2010 he filed a notice of abandonment which was signed by his then lawyer. On 24 June 2011, he filed an application for an extension of time within which to apply for leave to appeal against sentence. That application should be treated as an application to set aside the abandonment and reinstate the application for leave to appeal under Criminal Practice Rules 1999 (Qld) r 70(3). The relevant considerations in deciding whether to grant the application are the reason for the abandonment; the reason for the delay in progressing the matter; and the prospects of success of any appeal: see R v Hansen.[1]
[1][2008] QCA 351.

The applicant is now self-represented. In his signed outline of argument and in his oral contentions, he gave the following reasons in support of his application. His lawyers lodged an application for leave to appeal within time but they were not committed to his interests. His parents were handling his appeal but…

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 Whittaker

Details

AGLC: R v Whittaker [2011] QCA 237
Case: [2011] QCA 237
Decision Date: 16 September 2011

CaseChat Overview and Summary

The matter before the court was an appeal by the applicant against the sentence imposed by the sentencing judge in the District Court. The applicant had pleaded guilty to charges of grievous bodily harm with intent and was subsequently sentenced to eight years imprisonment, with a declaration that the offence was a serious violent offence under the Penalties and Sentences Act 1992. The applicant sought an extension of time to appeal against the sentence, arguing that it was manifestly excessive and failed to take into account his post-traumatic stress disorder and other mitigating factors. The court was required to determine whether the application for an extension of time to appeal should be granted.

The court examined the grounds for the application and considered whether the sentence imposed was manifestly excessive. It assessed the mitigating factors presented by the applicant, including his post-traumatic stress disorder, but ultimately determined that these did not warrant an extension of time to appeal. The court held that the sentence was within the range of appropriate penalties for the offence and that the sentencing judge had adequately considered the mitigating factors. The court also noted that the application for an extension of time was made outside the statutory timeframe and that the applicant had not demonstrated any exceptional circumstances that warranted an extension.

In conclusion, the court found that the applicant had not satisfied the necessary criteria for an extension of time to appeal against the sentence. The application was dismissed, and the applicant's appeal against the sentence was therefore not heard. The court's decision emphasised the importance of adhering to statutory timelines for appeals and the need for compelling reasons to extend such deadlines.

Orders

Orders of the court

The application for an extension of time to appeal against sentence is refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Whittaker [2011] QCA 237
PARTIES:	R v WHITTAKER, Ziyaad (applicant)
FILE NO/S:	CA No 170 of 2011 DC No 601 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Mackay
DELIVERED ON:	16 September 2011
DELIVERED AT:	Brisbane
HEARING DATE:	26 August 2011
JUDGES:	Margaret McMurdo P, Chesterman JA and North J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for an extension of time to appeal against sentence is refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL –PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant pleaded guilty to doing grievous bodily harm with intent – where the applicant was sentenced to eight years imprisonment with a declaration that the offence was a serious violent offence under Pt 9A Penalties and Sentences Act 1992 (Qld) – where the applicant seeks an extension of time to appeal against sentence on the grounds that the sentence imposed was manifestly excessive and did not reflect his post-traumatic stress disorder and other mitigating features – whether the application for an extension of time should be granted Criminal Practice Rules 1999 (Qld), r 70(3) Penalties and Sentences Act 1992 (Qld), Pt 9A R v Bruce King, unreported, District Court of Queensland, Durward SC DCJ, 29 September 2010, distinguished R v Douglas [2004] QCA 1, considered R v Hansen [2008] QCA 351, cited R v Nguyen [2006] QCA 542, considered
COUNSEL:	The applicant appeared on his own behalf D L Meredith for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent