Evans v The Queen

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.