R v Abe - [2019] QCA 83

SUPREME COURT OF QUEENSLAND

CITATION:

R v ABE [2019] QCA 83

PARTIES:

R
v
ABE
(applicant)

FILE NO/S:

CA No 323 of 2018
DC No 1662 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 2 November 2018 (Jones DCJ)

DELIVERED ON:

14 May 2019

DELIVERED AT:

Brisbane

HEARING DATE:

29 April 2019

JUDGES:

Sofronoff P and Mullins and Davis JJ

ORDERS:

1.   Application for leave to adduce further evidence refused.

2.   Application for leave to appeal against sentence granted.

3.   Appeal against sentence allowed.

4.   Sentence varied by substituting 1 August 2019 as the parole eligibility date in lieu of 1 February 2020.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of malicious act with intent (domestic violence offence) and one count of grievous bodily harm (domestic violence offence) – where the applicant was sentenced to six years for each count with a parole eligibility date fixed after 15 months had been served in custody – where the applicant’s teenage daughter is severely disabled and the applicant is the primary carer – whether the sentencing judge erred in failing to find that the circumstances of the daughter’s needs were so exceptional that a non-custodial sentence was justified – whether the sentence was manifestly excessive in that the parole eligibility date should have been fixed after less time served in custody than 15 months

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE – where the applicant’s adult daughter provided further affidavits which detailed the care arrangements for the applicant’s severely disabled teenage daughter since the applicant went into custody – whether the further affidavits should be received as new evidence on the application for leave to appeal against sentence – whether it was necessary or expedient in the interests of justice for the court to receive the evidence

Criminal Code (Qld), s 671B

R v Chong; ex parte Attorney-General (Qld) (2008) 181 A Crim R 200; [2008] QCA 22, considered

COUNSEL:

J W Fenton for the applicant
P J McCarthy for the respondent

SOLICITORS:

Life Law Solutions for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons of Mullins J and the orders her Honour proposes.
MULLINS J: On 2 November 2018 the applicant pleaded guilty to one count of stalking (count 1), one count of malicious act with intent (domestic violence offence) (count 2) and one count of grievous bodily harm (domestic violence offence) (count 3). She was sentenced to four months’ imprisonment for the stalking. She was sentenced to six years’ imprisonment with a parole eligibility date fixed at 1 February 2020 (after serving 15 months in custody) for each of the other counts. The complainant for counts 2 and 3…

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 Abe

Details

AGLC: R v Abe [2019] QCA 83
Case: [2019] QCA 83
Decision Date: 14 May 2019

CaseChat Overview and Summary

The applicant, who pleaded guilty to charges of a malicious act with intent and grievous bodily harm, both domestic violence offences, appealed against his sentence. The primary issue before the court was whether the sentencing judge erred in not recognising the exceptional circumstances of the applicant’s severely disabled daughter and the impact of the applicant’s incarceration on her care, which should have justified a non-custodial sentence. The court also considered whether the parole eligibility date was manifestly excessive. The applicant’s teenage daughter, who has spina bifida and hydrocephalus, requires constant and intensive care, with the applicant as the primary caregiver. The applicant's incarceration meant that alternative care arrangements were less effective, placing a significant burden on the family and health services.

The court examined the evidence before the sentencing judge, which included letters from medical professionals and social workers outlining the extensive care needs of the applicant's daughter. The court noted that the applicant's role as the primary caregiver was critical to the daughter's wellbeing. The sentencing judge did not explicitly acknowledge these exceptional circumstances, which the court deemed an error. The court found that the parole eligibility date of 15 months was manifestly excessive, considering the low risk of reoffending and the absence of a risk to the public. The court granted leave to appeal and varied the sentence, setting a parole eligibility date of 1 August 2019 instead of 1 February 2020. The court also refused the application to adduce further evidence provided by the applicant's adult daughter, finding it unnecessary for the interests of justice.

Orders

Orders of the court

1. Application for leave to adduce further evidence refused.

2. Application for leave to appeal against sentence granted.

3. Appeal against sentence allowed.

4. Sentence varied by substituting 1 August 2019 as the parole eligibility date in lieu of 1 February 2020.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The early guilty plea would normally have seen the applicant eligible for parole after two years in custody, but taking into account all the mitigating circumstances, the parole eligibility date was set at 15 months from the date of sentencing. Having regard to the particular circumstances involved where there was no risk to the public at large and there was only a low risk of the applicant reoffending against the complainant, the offending did not warrant the making of a serious violent offender declaration.The application to adduce further evidence In order to assess whether the affidavits of the adult daughter should be received as new evidence on the hearing of the application for leave to appeal against sentence, it is necessary to outline the evidence that was before the sentencing judge relating to AA’s needs and the applicant’s role in meeting those needs. It was in the form of letters from Dr Rodwell of the Queensland Paediatric Rehabilitation Service letter dated 1 August 2018, social worker Ms Martinuzzi from Spina Bifida Hydrocephalus Queensland (SBH) and case manager Ms Darrough of Kyabra Community Association dated 2 August 2018. Dr Rodwell noted that the applicant was the primary carer for AA and explained about AA’s spina bifida:“Her lesion is in the high lumbar region meaning that [AA] has minimal movement and sensation of her lower limbs. [AA] also has a brain malformation known as an Arnold-Chiari II malformation and requires a ventriculoperitoneal shunt for hydrocephalus. This has impacts on her thinking and learning skills and she has been diagnosed with mild intellectual disability.” Dr Rodwell noted further as follows. AA also has bladder and bowel incontinence and poor sensation of her skin which is at risk of multiple pressure areas, as a result of her spinal condition. AA has had surgery to assist with her continence “including a Mitrofanoff and MACE procedure”. AA has type 2 diabetes mellitus which requires insulin injections. AA requires assistance for most of her activities of daily living, including toileting, showering and dressing. She requires prompts to organise and remember daily tasks and is at high risk for pressure sores. Dr Rodwell continued:“She requires [the applicant] to perform second daily washouts through a channel called a MACE to help control her bowels. She also requires assistance in performing clean intermittent catheterisation for urinary continence on a daily basis. [AA] has required several prolonged hospital admissions due to her pressure areas and her mother has consistently been available to support [AA] in this environment. [AA’s] care is significantly complicated that she requires a consistent point of care to perform all of these complex tasks on a daily basis.” Dr Rodwell noted that AA was in hospital from January to May 2018 and the applicant attended to AA consistently throughout her hospital stay and attended weekly family meetings for discharge planning. Ms Martinuzzi recorded that AA who had a diagnosis of both spina bifida and hydrocephalus had been a registered member of SBH since March 2004 and Ms Martinuzzi, in her capacity as social worker with SBH for six years, considered it is crucial to AA’s ongoing wellbeing that the applicant is able to continue in her primary care role of AA and not face a period of incarceration.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v ABE [2019] QCA 83
PARTIES:	R v ABE (applicant)
FILE NO/S:	CA No 323 of 2018 DC No 1662 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 2 November 2018 (Jones DCJ)
DELIVERED ON:	14 May 2019
DELIVERED AT:	Brisbane
HEARING DATE:	29 April 2019
JUDGES:	Sofronoff P and Mullins and Davis JJ
ORDERS:	1. Application for leave to adduce further evidence refused. 2. Application for leave to appeal against sentence granted. 3. Appeal against sentence allowed. 4. Sentence varied by substituting 1 August 2019 as the parole eligibility date in lieu of 1 February 2020.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of malicious act with intent (domestic violence offence) and one count of grievous bodily harm (domestic violence offence) – where the applicant was sentenced to six years for each count with a parole eligibility date fixed after 15 months had been served in custody – where the applicant’s teenage daughter is severely disabled and the applicant is the primary carer – whether the sentencing judge erred in failing to find that the circumstances of the daughter’s needs were so exceptional that a non-custodial sentence was justified – whether the sentence was manifestly excessive in that the parole eligibility date should have been fixed after less time served in custody than 15 months CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE – where the applicant’s adult daughter provided further affidavits which detailed the care arrangements for the applicant’s severely disabled teenage daughter since the applicant went into custody – whether the further affidavits should be received as new evidence on the application for leave to appeal against sentence – whether it was necessary or expedient in the interests of justice for the court to receive the evidence Criminal Code (Qld), s 671B R v Chong; ex parte Attorney-General (Qld) (2008) 181 A Crim R 200; [2008] QCA 22, considered
COUNSEL:	J W Fenton for the applicant P J McCarthy for the respondent
SOLICITORS:	Life Law Solutions for the applicant Director of Public Prosecutions (Queensland) for the respondent