Legal Research
Cases
Evans v The Queen

Evans v The Queen

Case [2021] ACTCA 19 27 August 2021

Statutory Construction

Criminal Law

Statutory Interpretation

Type to search within this case.

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

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…

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 Evans v The Queen

Details

AGLC: Evans v The Queen [2021] ACTCA 19
Case: [2021] ACTCA 19
Decision Date

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.

Orders