R v Wirth - [2006] QCA 388

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wirth [2006] QCA 388

PARTIES:

R
v
WIRTH, Hans Jurgen
(applicant)

FILE NO/S:

CA No 188 of 2006
DC No 54 of 2003
DC No 586 of 2004
DC No 587 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

6 October 2006

DELIVERED AT:

Brisbane

HEARING DATE:

26 September 2006

JUDGES:

Keane and Holmes JJA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION - QUEENSLAND - PROCEDURE - EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT - applicant pleaded guilty to and was convicted of three counts of armed robbery, one count of armed robbery with personal violence, two counts of deprivation of liberty, two counts of serious assault and summary offences - sentenced to various concurrent terms of imprisonment, maximum being eight and a half years for armed robbery with personal violence - serious violent offence declarations made in respect of the four armed robbery offences - applicant applied to this Court for extension of time to appeal conviction and sentence in March 2005 - this Court rejected application in May 2005 - applicant filed new application for extension of time to appeal conviction and sentence in July 2006 - applicant relied on need to attend to family circumstances - whether applicant has shown a good reason, in the interests of justice, to grant application for extension of time

R v Tait [1998] QCA 304; [1999] 2 Qd R 667, applied

COUNSEL:

The applicant appeared on his own behalf
S G Bain for the respondent

SOLICITORS:

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

KEANE JA: On 9 December 2004, the applicant entered pleas of guilty to a number of offences for which he was sentenced to concurrent terms of imprisonment, the most severe of which was eight and a half years for armed robbery with personal violence committed on 1 November 2003. A serious violent offence ("SVO") declaration was made in respect of this offence. For another offence of armed robbery, also committed on 1 November 2003, the applicant was sentenced to six years imprisonment with an SVO declaration. The applicant was also sentenced to seven and a half years imprisonment with an SVO declaration in respect of an armed robbery committed on 11 June 2003. He was also sentenced to seven years imprisonment with an SVO declaration for an armed robbery committed on 20 December 2001. He was sentenced to shorter terms of imprisonment for a range of other offences.

On 10 March 2005, the applicant applied for an extension of time within which to appeal against his conviction and sentence. This application was considered by this Court on 18 May 2005.[1] On that occasion, the…

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 Wirth

Details

AGLC: R v Wirth [2006] QCA 388
Case: [2006] QCA 388
Decision Date: 6 October 2006

CaseChat Overview and Summary

The appellant in this case pleaded guilty to multiple charges, including armed robbery, armed robbery with personal violence, deprivation of liberty, and assault. The trial court sentenced the appellant to concurrent terms of imprisonment, with the longest term being eight and a half years for armed robbery with personal violence. Given the severity of the offences, the court also made declarations of serious violent offence in relation to the armed robbery charges. Dissatisfied with the sentence, the appellant applied to the court for an extension of time to appeal both the conviction and the sentence in March 2005, but the court rejected the application. In July 2006, the appellant made another application for an extension of time, citing the need to attend to family circumstances as the reason for the delay. The primary legal issue before the court was whether the appellant had demonstrated a good reason, in the interests of justice, to warrant an extension of time to appeal.

The court considered the principles outlined in R v Tait and held that the appellant had not provided sufficient grounds to justify an extension of time. The court noted that the appellant had ample opportunity to lodge the appeal within the prescribed time frame and had not demonstrated any exceptional circumstances that would warrant an extension. The appellant's reliance on family matters did not sufficiently explain the delay in lodging the appeal. The court also considered the appellant's criminal history and the seriousness of the offences, which weighed against granting an extension. Ultimately, the court found that the appellant had not shown a good reason for the delay, and therefore, the application for an extension of time was refused.

In light of the court's decision, the appellant's application for an extension of time to appeal the conviction and sentence was dismissed. The court emphasized that the delay in lodging the appeal was not sufficiently justified, and the appellant had not demonstrated any exceptional circumstances warranting an extension. The court's decision was based on the principles of fairness and the need to uphold the integrity of the legal process. The appellant's appeal against the sentence was not to proceed further due to the rejection of the extension of time application. The final order of the court was that the application for an extension of time was refused, and the appeal was not to proceed.

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 Wirth [2006] QCA 388
PARTIES:	R v WIRTH, Hans Jurgen (applicant)
FILE NO/S:	CA No 188 of 2006 DC No 54 of 2003 DC No 586 of 2004 DC No 587 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence & Conviction)
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	6 October 2006
DELIVERED AT:	Brisbane
HEARING DATE:	26 September 2006
JUDGES:	Keane and Holmes JJA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION - QUEENSLAND - PROCEDURE - EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT - applicant pleaded guilty to and was convicted of three counts of armed robbery, one count of armed robbery with personal violence, two counts of deprivation of liberty, two counts of serious assault and summary offences - sentenced to various concurrent terms of imprisonment, maximum being eight and a half years for armed robbery with personal violence - serious violent offence declarations made in respect of the four armed robbery offences - applicant applied to this Court for extension of time to appeal conviction and sentence in March 2005 - this Court rejected application in May 2005 - applicant filed new application for extension of time to appeal conviction and sentence in July 2006 - applicant relied on need to attend to family circumstances - whether applicant has shown a good reason, in the interests of justice, to grant application for extension of time R v Tait [1998] QCA 304; [1999] 2 Qd R 667, applied
COUNSEL:	The applicant appeared on his own behalf S G Bain for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent