R v Barclay - [2021] QCA 193

SUPREME COURT OF QUEENSLAND

CITATION:

R v Barclay [2021] QCA 193

PARTIES:

R
v
BARCLAY, James
(applicant)

FILE NO/S:

CA No 27 of 2021
DC No 487 of 2020
DC No 488 of 2020
DC No 489 of 2020
DC No 10 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport – Date of Sentence: 18 January 2021 (Kent QC DCJ)

DELIVERED ON:

7 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

23 August 2021

JUDGES:

Sofronoff P and Fraser JA and North J

ORDER:

Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to four indictments – where the applicant had relevant criminal history in Queensland and New South Wales – where the applicant had offended whilst on bail – where the applicant had offended while in custody – where sentences imposed on indictment 489/20 were to be served cumulatively on sentences imposed on indictments 487/20 and 488/20 – where the sentence imposed on indictment 10/21 was to be served cumulatively on sentences imposed on 487/20, 488/20 and 489/20 – where the applicant was sentenced to an overall head sentence of five years and three months – where the applicant seeks leave to appeal the sentence on the grounds that the sentence is manifestly excessive – whether the overall head sentence imposed was manifestly excessive in all the circumstances

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was eligible for parole on 14 June 2021 – where the applicant chose to make application for leave to appeal against sentence in the context of a legislative scheme which prevents him from making an application for parole whilst the appeal is undecided – whether the head sentence imposed was manifestly excessive in all the circumstances

Corrective Services Act 2006 (Qld), s 180(2)(b)

R v Fares[2012] QCA 13, cited
R v Getawan[2014] QCA 235, cited
R v Harnden[2003] QCA 340, cited
R v Luxford[2020] QCA 272, distinguished
R v Omar[2012] QCA 23, cited

COUNSEL:

B J Power for applicant
C L Birkett for respondent

SOLICITORS:

Wallace O’Hagan Solicitors for applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons of North J and with the orders proposed by his Honour.
FRASER JA: I agree with the reasons for judgment of North J and the order proposed by his Honour.
NORTH J: On 18 January 2021 the applicant pleaded guilty to four indictments in the District Court at Southport. He was sentenced and he now seeks leave to appeal against his sentence, the only ground being that the sentence imposed was manifestly excessive. Details of the four indictments, the counts, the dates of offending and the sentences imposed are:
Indictment 487/20

Count Number

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 Barclay

Details

AGLC: R v Barclay [2021] QCA 193
Case: [2021] QCA 193
Decision Date: 7 September 2021

CaseChat Overview and Summary

The applicant, having pleaded guilty to four separate indictments, sought leave to appeal against the sentence imposed, arguing it was manifestly excessive. The case was heard in the relevant appellate court where the applicant's criminal history, including prior offences in Queensland and New South Wales, as well as offences committed while on bail and in custody, were considered. The cumulative sentences for these indictments resulted in an overall head sentence of five years and three months.

The legal issues central to the case involved the determination of whether the imposed sentence was manifestly excessive given the totality of the circumstances, including the applicant's criminal history and the nature of the current offences. The court had to weigh these factors against the principles of sentencing to assess the proportionality and appropriateness of the sentence.

The court reviewed the sentence in detail, considering the cumulative effect of the applicant's criminal conduct and the necessity to deter future criminal behaviour. It concluded that the sentence was neither manifestly excessive nor inadequate, and therefore, dismissed the application for leave to appeal. The court's reasoning hinged on the balance between the seriousness of the crimes, the applicant's criminal history, and the deterrent effect of the sentence.

No further orders were made as the application for leave to appeal was refused.

Orders

Orders of the court

Application for leave to appeal refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Barclay [2021] QCA 193
PARTIES:	R v BARCLAY, James (applicant)
FILE NO/S:	CA No 27 of 2021 DC No 487 of 2020 DC No 488 of 2020 DC No 489 of 2020 DC No 10 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport – Date of Sentence: 18 January 2021 (Kent QC DCJ)
DELIVERED ON:	7 September 2021
DELIVERED AT:	Brisbane
HEARING DATE:	23 August 2021
JUDGES:	Sofronoff P and Fraser JA and North J
ORDER:	Application for leave to appeal refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to four indictments – where the applicant had relevant criminal history in Queensland and New South Wales – where the applicant had offended whilst on bail – where the applicant had offended while in custody – where sentences imposed on indictment 489/20 were to be served cumulatively on sentences imposed on indictments 487/20 and 488/20 – where the sentence imposed on indictment 10/21 was to be served cumulatively on sentences imposed on 487/20, 488/20 and 489/20 – where the applicant was sentenced to an overall head sentence of five years and three months – where the applicant seeks leave to appeal the sentence on the grounds that the sentence is manifestly excessive – whether the overall head sentence imposed was manifestly excessive in all the circumstances CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was eligible for parole on 14 June 2021 – where the applicant chose to make application for leave to appeal against sentence in the context of a legislative scheme which prevents him from making an application for parole whilst the appeal is undecided – whether the head sentence imposed was manifestly excessive in all the circumstances Corrective Services Act 2006 (Qld), s 180(2)(b) R v Fares[2012] QCA 13, cited R v Getawan[2014] QCA 235, cited R v Harnden[2003] QCA 340, cited R v Luxford[2020] QCA 272, distinguished R v Omar[2012] QCA 23, cited
COUNSEL:	B J Power for applicant C L Birkett for respondent
SOLICITORS:	Wallace O’Hagan Solicitors for applicant Director of Public Prosecutions (Queensland) for the respondent