R v Wirth - [2005] QCA 166

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wirth [2005] QCA 166

PARTIES:

R
v
WIRTH, Hans Jurgen
(applicant)

FILE NO/S:

CA No 53 of 2005
DC No 54 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED EX TEMPORE ON:

18 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

18 May 2005

JUDGES:

McMurdo P, Jerrard JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for extension of time to appeal against conviction refused
2. Application for extension of time to apply for leave to appeal against sentence 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 – where applicant originally sought extension of time to appeal against conviction and sentence – where subsequently sought extension of time to apply for leave to appeal against sentence only

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 – where two month delay in filing application for leave to appeal against sentence – where explanation for delay no legal experience in filing appeals and only recently able to contact solicitor wished to handle appeal – whether satisfactory explanation for delay – whether extension of time should be granted

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – where applicant convicted after pleas of guilty to three counts of armed robbery, two counts of deprivation of liberty, two counts of serious assault, one count of armed robbery with personal violence and minor summary offences – where sentenced to terms of six, seven and seven and a half years imprisonment for armed robbery offences – where sentenced to eight and a half years imprisonment for armed robbery with personal violence – where all robbery offences declared to be serious violent offences under Pt 9A Penalties and Sentences Act 1991 (Qld) – where sentenced to lesser terms of imprisonment for remaining offences – where all sentences to be served concurrently – where no recommendation for post-prison community-based release – where aged between 53 and 55 when committed offences – where three of armed robbery offences committed whilst on bail and two whilst on two grants of bail – where distress caused to victims – where resisted arrest and forcibly disarmed – where alcoholic and depressive – where attempts at rehabilitation unsuccessful – where minor prior convictions – where early plea of guilty – where majority of offences dealt with by ex officio indictment – where good work history – whether sentence manifestly excessive

R v Crossley (1999) 106 A Crim R 80, applied

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 [2005] QCA 166
Case: [2005] QCA 166
Decision Date: 18 May 2005

CaseChat Overview and Summary

In the case of R v Wirth, the appellant sought an extension of time to appeal against his conviction and sentence for multiple armed robbery and assault offences. The Queensland Court of Appeal was tasked with deciding whether to grant the appellant an extension of time to apply for leave to appeal against his sentence only, after a two-month delay in filing the application. The appellant's explanation for the delay was due to his lack of legal experience in filing appeals and his recent ability to contact a solicitor to handle the appeal. The court had to determine whether this explanation was satisfactory and whether an extension of time should be granted.

The court considered the appellant's explanation for the delay, which was based on his lack of legal experience in filing appeals and his recent ability to contact a solicitor to handle the appeal. The court examined whether the appellant's explanation was reasonable and whether the delay was caused by any circumstances beyond his control. The court also considered the seriousness of the offences, the appellant's criminal history, and the impact of the delay on the administration of justice. The court concluded that the appellant's explanation for the delay was not satisfactory, and the delay was caused by circumstances within his control. Therefore, the court refused to grant an extension of time to apply for leave to appeal against his sentence.

The court dismissed the appellant's application for an extension of time to appeal against his conviction and sentence. The court held that the appellant's explanation for the delay was not satisfactory, and the delay was caused by circumstances within his control. The court noted that the appellant had no legal experience in filing appeals and had only recently been able to contact a solicitor to handle the appeal. The court also considered the seriousness of the offences, the appellant's criminal history, and the impact of the delay on the administration of justice. The court concluded that the appellant had not provided a sufficient explanation for the delay and that an extension of time should not be granted. Therefore, the court refused the application for an extension of time to appeal against conviction and sentence.

The court's final orders were that the application for an extension of time to appeal against conviction was refused, and the application for an extension of time to apply for leave to appeal against sentence was also refused. The appellant's appeal against his conviction and sentence was therefore dismissed.

Orders

Orders of the court

1. Application for extension of time to appeal against conviction refused

2. Application for extension of time to apply for leave to appeal against sentence 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 [2005] QCA 166
PARTIES:	R v WIRTH, Hans Jurgen (applicant)
FILE NO/S:	CA No 53 of 2005 DC No 54 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence & Conviction)
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED EX TEMPORE ON:	18 May 2005
DELIVERED AT:	Brisbane
HEARING DATE:	18 May 2005
JUDGES:	McMurdo P, Jerrard JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for extension of time to appeal against conviction refused 2. Application for extension of time to apply for leave to appeal against sentence 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 – where applicant originally sought extension of time to appeal against conviction and sentence – where subsequently sought extension of time to apply for leave to appeal against sentence only 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 – where two month delay in filing application for leave to appeal against sentence – where explanation for delay no legal experience in filing appeals and only recently able to contact solicitor wished to handle appeal – whether satisfactory explanation for delay – whether extension of time should be granted CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – where applicant convicted after pleas of guilty to three counts of armed robbery, two counts of deprivation of liberty, two counts of serious assault, one count of armed robbery with personal violence and minor summary offences – where sentenced to terms of six, seven and seven and a half years imprisonment for armed robbery offences – where sentenced to eight and a half years imprisonment for armed robbery with personal violence – where all robbery offences declared to be serious violent offences under Pt 9A Penalties and Sentences Act 1991 (Qld) – where sentenced to lesser terms of imprisonment for remaining offences – where all sentences to be served concurrently – where no recommendation for post-prison community-based release – where aged between 53 and 55 when committed offences – where three of armed robbery offences committed whilst on bail and two whilst on two grants of bail – where distress caused to victims – where resisted arrest and forcibly disarmed – where alcoholic and depressive – where attempts at rehabilitation unsuccessful – where minor prior convictions – where early plea of guilty – where majority of offences dealt with by ex officio indictment – where good work history – whether sentence manifestly excessive R v Crossley (1999) 106 A Crim R 80, applied