Evans v The Queen
[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 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
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.
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].
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 months. Ms Stott appealed.
The Court of Appeal (Murrell CJ, Mossop and Loukas-Karlsson JJ) concluded that there was no evidence to support the trial judge’s finding that "the appellant and Mr Evans had made an arrangement prior to arriving at the premises that they would make demands of someone at the premises": Stott v The Queen [2021] ACTCA 18 (Stott) at [38]. The Court of Appeal therefore re-sentenced Ms Stott, reducing the starting point for the sentences in respect of counts 1 and 3 to 30 months each: see Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [35], [42]; Urlich v The Queen [2019] ACTCA 30; 14 ACTLR 267 at [84].
By a notice of appeal filed on 11 November 2020, the appellant has appealed against all of the orders for his imprisonment on the ground that “the sentence imposed was manifestly excessive”. The appellant was unrepresented at the time of the filing of his notice of appeal and remains unrepresented.
The respondent accepts that the error identified by the Court of Appeal in Stott occurred in sentencing the appellant and that this Court would so conclude and proceed to re-exercise the sentencing discretion in relation to all counts. Because the re-sentencing in respect of counts 1 and 3 necessarily involve application of the totality principle, the respondent accepted that this Court should re-sentence also in respect of count 2: see Lehn v R [2016] NSWCCA 255; 93 NSWLR 205; Wells v Mount [2020] ACTSC 333(Loukas-Karlsson J). The respondent submitted, however, that the factual error did not inform the objective seriousness of count 2 and that, in relation to that count, no other sentence was warranted.
At the hearing of the appeal, leave was granted to the appellant to amend his notice of appeal to add a second ground of appeal, namely that the sentencing judge erred in finding that the offending involved a pre-existing plan. The respondent, having raised the matters just referred to in written submissions filed before the appeal, conceded that ground. That concession was appropriately made.
The underlying events
It is necessary to refer only briefly to the underlying events. On the afternoon of 18 January 2019, the victim arrived at an address in Kambah on a bicycle. As the victim arrived, the appellant and Ms Stott also arrived driven by Ms Stott. The victim knew Ms Stott, but not the appellant.
Ms Stott and the appellant followed the victim into the house. The victim sat on a lounge at the front door, Ms Stott sat opposite him and the occupier of the residence sat to the victim's right on another lounge seat. The appellant did not sit down, instead picking up a baseball bat that was leaning against the side of the lounge where occupier of the residence sat. Ms Stott asserted to the victim that he owed her a substantial sum of money from approximately 10 years earlier, which the victim denied. The appellant restricted the victim's movements, effectively restraining him in the seat, by threatening to hit him and cause physical injury with the baseball bat. No‑one intervened in those threats.
After a while, Ms Stott threatened to restrain the victim with cable ties and take him back to her house in the boot of her vehicle, at the same time making it clear to him by veiled threat that he would not be free to leave her house. Ms Stott directed the victim to stand so that she could check his pockets. The victim pushed Ms Stott, at which time the appellant started hitting the victim with the baseball bat. The sentencing judge found "multiple blows were inflicted on the victim" and was satisfied that the number of blows was "closer to the figure of three or four times as first reported by the victim".While the victim was being struck with the baseball bat, he was able to make his way into the kitchen and grab a knife from a drawer and threatened the appellant.
Ms Stott attempted, at some point, to stop the appellant from striking the victim with the baseball bat. After grabbing the knife, the victim was successful in chasing the appellant and Ms Stott out of the house and into the front yard. The victim was bleeding from a wound to his head and was highly agitated and emotional, and contacted police and family. The victim was concerned that both offenders were going to leave in Ms Stott’s vehicle before police arrived and stabbed the tyre of her car with the knife causing the tyre to deflate. The appellant quickly left the scene in another vehicle driven by an unknown third party before police arrived, taking the baseball bat with him but discarding it a short distance down the street.
The appeal
The Court’s power, in an appeal against sentence, includes the power to "increase or decrease the sentence" or to "substitute a different sentence": s 37O(7) of the Supreme Court Act 1933 (ACT).
As previously mentioned, the sentencing judge adopted the same starting point for the sentences imposed upon the appellant and Ms Stott in respect of counts 1 and 3. As the account of the events set out above indicates, and despite their different roles in those events, the objective seriousness of the offences committed by Ms Stott and the appellant is equivalent. So too is their moral culpability. As to their personal circumstances, the appellant was 34 years old at the time of sentence and Ms Stott was 58 years old. Both offenders had criminal histories which include previous offences of violence and the imposition of terms of imprisonment. Both had a history of illicit drug use. The appellant's prospects of rehabilitation were described by the sentencing judge as "poor" and for Ms Stott as "guarded". There were some personal circumstances of Ms Stott which distinguished her situation from that of Mr Evans but not in a manner that would affect the appropriate starting point for the sentences. The appropriate starting point for the sentence should be the same as between Ms Stott and the appellant.
Having regard to the events and matters described above, and to the parity principle, the sentence which should be imposed on the appellant is, in respect of count 1, 30 months, and, in respect of count 3, 30 months.
As mentioned earlier, by reason of the demonstrated error with respect to the sentencing in respect of counts 1 and 3, the Court must also re-sentence in respect of count 2. Connected with this is the appellant’s contention that the sentence imposed was manifestly excessive. The imposition of a sentence requires the exercise of judicial discretion and it follows that there is not one appropriate sentence. A sentence can be shown to be manifestly excessive, absent pointing to specific error, if it is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dalton v The Queen [2015] ACTCA 48 at [18]; Kelly v The Queen [2021] ACTCA 15 (Kelly) at [42]. It is necessary to assess the sentence which has been imposed “in the context of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the relative objective seriousness of the particular offence and the personal circumstances of the offender”: Tracey v The Queen [2020] ACTCA 51 at [38]; Kelly at [43].
The sentencing judge assessed the objective seriousness of the count 2 offence separately to the other offences. The sentencing judge described the objective seriousness at [8] as follows:
In assessing the objective seriousness of the offence of intentionally inflicting actual bodily harm, I take into account that a weapon, a baseball bat, was used. I take into account that multiple blows were inflicted on the victim...I cannot be certain how many blows were struck, but I am satisfied it was closer to the figure of three or four times as first reported by the victim than the greater estimate he later gave in his evidence. In a report dated 5 March 2019, Dr Amanda Barry expressed the opinion that the victim sustained a 5 cm left‑sided parieto-occipital laceration with a surrounding 3cm haematoma which required suturing, as well as multiple bruises and swellings to his upper limbs and upper chest. These are not insignificant injuries, but they are not the worst injuries that may fall within the description of actual bodily harm. I would assess this offence as in the mid-range of such offences.
As mentioned, the sentencing judge erred in concluding that "the appellant and Mr Evans had made an arrangement prior to arriving at the premises that they would make demands of someone at the premises". The respondent submitted it should be concluded that this error did not inform the sentencing judge's assessment of objective seriousness for this offence. That submission should be accepted. The sentencing judge expressly stated at [3] that he was “not satisfied that it was part of your agreed plan with your co-offender to cause injury to the victim”. It is also to be noted that the baseball bat was in the house before the appellant arrived. The sentencing judge noted that the “plan unravelled” because of the appellant’s attack. The sentencing judge addressed counts 1 and 3 separately, before addressing count 2. The reasoning as a whole makes it clear that the erroneous factual finding was not one taken into account in sentencing in relation to count 2.
The offending included the use of a weapon and multiple blows. The sentencing judge correctly described the injuries as "not insignificant". Assessing the sentence in the context of the maximum sentence prescribed for the offence (five years), the standards of sentencing customarily observed with respect to the offence, the relative objective seriousness of the particular offence and the personal circumstances of the offender, the sentence imposed by the sentencing judge cannot be described as unjust or unreasonable.
The sentence of 24 months is also appropriate, having regard to the totality principle and the re-sentences on counts 1 and 3, on re-sentence in respect of count 2.
Conclusion
The appellant should be re-sentenced but there is no reason not to adopt the general structure of the sentence as imposed by the sentencing judge.
At the time of sentencing, the appellant had been in custody since 5 February 2019. His then current sentences of imprisonment were due to expire on 5 March 2026 and his then current non-parole period expired on 24 March 2023. The sentencing judge noted that the then current ratio of the appellant’s non-parole period to his head sentence was approximately 58 per cent and considered that some increase in that ratio was warranted. The sentencing judge, accordingly, reset the appellant's non‑parole period to six years and five months, commencing on 5 February 2019 and expiring on 4 July 2025 – see: ss 65, 66 of the Crimes (Sentencing) Act 2005 (ACT). The non-parole period was approximately 65 per cent of the head sentence.
The sentencing judge also permitted a degree of concurrency as between the existing sentences of imprisonment and the sentences that he imposed. He did this by making the sentence on count 1 concurrent as to 18 months with the existing sentence. This was on the basis of considerations of totality: R v Evans at [18].
The sentence that will be imposed is a sentence of three years and six months, which incorporates substantial degrees of concurrency in a manner similar to that imposed by Burns J. It also incorporates a degree of concurrency with the existing sentence.
The orders made on 15 October 2020 are set aside and the following orders made:
1. On count 1 on the indictment, unlawful confinement (CC 2019/4029) the offender is convicted and sentenced to 30 months’ imprisonment commencing on 5 December 2024 and ending on 4 June 2027
2. On count 3 on the indictment, making a demand accompanied by threat (CC 2019/4030) the offender is convicted and sentenced to 30 months’ imprisonment commencing on 5 June 2025 and ending on 4 December 2027.
3. On count 2 on the indictment, intentionally inflicting actual bodily harm (CC2019/4028) the offender is convicted and sentenced to 24 months’ imprisonment commencing on 5 June 2026 and ending on 4 June 2028.
4. The non-parole period commences on 5 February 2019 and ends on 4 March 2025.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Mossop, Justice Thawley and Acting Justice Refshauge. Associate: Date: 27 August 2021 |
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