Evans v The Queen

Case [2021] ACTCA 19


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Evans v The Queen

Citation:

[2021] ACTCA 19

Hearing Date:

10 August 2021

DecisionDate:

27 August 2021

Before:

Mossop and Thawley JJ, Refshauge AJ

Decision:

See [24]

Catchwords:

APPEAL – CRIMINAL LAW – Sentence appeal – manifest excess – whether the sentencing judge erred in finding that offending involved a pre-existing plan – general structure of sentence as imposed by sentencing judge adopted – resentence

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT), ss 65, 66

Supreme Court Act 1933 (ACT), s 37O(7)

Cases Cited:

Dalton v The Queen [2015] ACTCA 48

House v The King (1936) 55 CLR 499
Kelly v The Queen [2021] ACTCA 15
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Lehn v R [2016] NSWCCA 255; 93 NSWLR 205
R v Evans [2020] ACTSC 285
R v Evans; R v Stott [2020] ACTSC 220
R v Stott [2020] ACTSC 284
Stott v The Queen [2021] ACTCA 18
Tracey v The Queen [2020] ACTCA 51
Urlich v The Queen [2019] ACTCA 30; 14 ACTLR 267

Wells v Mount [2020] ACTSC 333

Parties:

Evans (Appellant)

The Queen (Respondent)

Representation:

Counsel

Self-represented (Appellant)

R Christensen (Respondent)

Solicitors

Self-represented (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 42 of 2020

Decision under appeal: 

Court/Tribunal:             ACT Supreme Court

Before:  Burns J

Date of Decision:          15 October 2020

Case Title:  R v Evans

Citation: [2020] ACTSC 285

THE COURT:

Introduction

  1. On 15 October 2020, the appellant was sentenced to four years and four months’ imprisonment, commencing 5 September 2024 and expiring on 4 January 2029, for offences of unlawful confinement (count 1), making a demand accompanied by threat (count 3) and intentionally inflicting actual bodily harm (count 2): R v Evans [2020] ACTSC 285 (Burns J). The sentences in respect of each offence were: count 1 – 36 months; count 3 – 42 months; count 2 – 24 months.

  1. At the time of sentence, the appellant was subject to previously imposed sentences of imprisonment for unrelated offending.  The existing and new sentences resulted in a liability to serve a total of nine years and 11 months’ imprisonment.  The sentencing judge reset the appellant's non parole period to six years and five months, to expire on 4 July 2025: R v Evans at [26].

  1. The judge alone trial leading to the convictions the subject of the sentence involved a co-offender, Ms Stott: R v Evans; R v Stott [2020] ACTSC 220. Ms Stott was convicted of two of the offences in respect of which the appellant was convicted, namely counts 1 and 3. Ms Stott was later sentenced by Burns J to a total term of three years and four months' imprisonment: R v Stott [2020] ACTSC 284 at [20]. The starting points for the sentences in respect of the two offences were the same as the those in respect of the appellant: count 1 – 36 months; count 3 – 42…

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Evans v The Queen [2021] ACTCA 19
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[2021] ACTCA 19
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CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory, constituted by Mossop and Thawley JJ and Refshauge AJ, heard an appeal against a sentence imposed on the appellant for offences of unlawful confinement, making a demand accompanied by threat, and intentionally inflicting actual bodily harm. The appellant, self-represented, argued that the sentence of four years and four months' imprisonment was manifestly excessive. The respondent accepted that a factual error made by the sentencing judge in finding a pre-existing plan between the appellant and his co-offender, Ms Stott, had occurred and that this error necessitated a re-exercise of the sentencing discretion.

The primary legal issue before the Court was whether the sentencing judge erred in finding that the appellant and Ms Stott had made a pre-existing arrangement to make demands at the premises where the offending occurred. This finding was central to the original sentencing, particularly concerning the objective seriousness of the offences. The Court was also required to determine the appropriate sentence upon re-sentencing, considering the parity principle with Ms Stott's sentence, the totality principle in light of existing sentences, and whether the sentence for intentionally inflicting actual bodily harm was manifestly excessive.

The Court reasoned that the sentencing judge's finding of a pre-existing plan was unsupported by evidence, mirroring the conclusion reached by the Court of Appeal in Ms Stott's case. This error required the Court to re-sentence the appellant. Applying the parity principle, the Court determined that the starting points for the sentences for unlawful confinement and making a demand accompanied by threat should be the same as those imposed on Ms Stott, namely 30 months for each offence. The Court found that the sentencing judge's assessment of the objective seriousness of the intentionally inflicting actual bodily harm offence was not tainted by the erroneous factual finding regarding the pre-existing plan, and that the sentence of 24 months for this offence was not manifestly excessive, considering the use of a weapon, multiple blows, and the nature of the injuries.

Consequently, the Court set aside the original sentencing orders and imposed a revised sentence. The appellant was sentenced to 30 months' imprisonment for unlawful confinement, 30 months' imprisonment for making a demand accompanied by threat, and 24 months' imprisonment for intentionally inflicting actual bodily harm. These sentences were structured to incorporate substantial concurrency, similar to the original sentence, and a non-parole period was set to commence from the date of the appellant's custody.

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Evidence Before The Court

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