R v Bates

Case [2021] QCA 229

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bates [2021] QCA 229

PARTIES:

R
v
BATES, Joshua Daley
(applicant)

FILE NO/S:

CA No 204 of 2021
DC No 134 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 23 July 2021 (Rosengren DCJ)

DELIVERED ON:

Date of Orders: 18 October 2021
Date of Publication of Reasons: 26 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

18 October 2021

JUDGES:

Sofronoff P and Mullins and Bond JJA

ORDERS:

Date of Orders: 18 October 2021

1.   Leave to appeal granted.

2.   Appeal allowed.

3.   Vary the orders of Rosengren DCJ by setting aside the parole release date and, instead, ordering that the appellant be released on parole on 18 October 2021.

4.   The appellant pay restitution in the name of R and K Bulk Haulage Pty Ltd, in the sum of $18,000, to be paid to the Registrar of the District Court at Toowoomba, for payment to the complainant on count 4 of the indictment, such sum to be paid within 6 months.

5.   In the event that the appellant fails to pay such restitution, he shall attend before the District Court of Queensland at Toowoomba on the 26 April 2022 to show cause why imprisonment should not be enforced because of his failure to comply with the order.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of unlawfully using a motor vehicle to facilitate the commission of an indictable offence, one count of break and enter premises and steal and one count of arson – where the applicant was sentenced to imprisonment for three years for the arson with concurrent sentences of 18 months for the break and enter premises and steal and six months for each count of the unlawful use of a motor vehicle to facilitate the commission of an indictable offence – where the applicant was 22 years old at the time of the offences with no prior criminal history and excellent prospects of rehabilitation – where the offences were committed as revenge to the applicant’s former employer – where the sentencing judge limited the custodial component of the effective head sentence of three years’ imprisonment to one-sixth of that sentence – whether a custodial component made the sentence manifestly excessive

R v Hamstra[2020] QCA 185, applied
R v Hopper; Ex parte Attorney-General (Qld) [2015] 2 Qd R 56; [2014] QCA 108, cited
R v Kelley[2018] QCA 18, applied

COUNSEL:

S L Kissick with S MacDonald for the applicant
M P Le Grand for the respondent

SOLICITORS:

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

  1. SOFRONOFF P AND BOND JA:  On 18 October 2021, the Court, by majority, granted leave to appeal, allowed the appeal, varied the sentence which had been imposed and required restitution to be made.  As ultimately…

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Details
AGLC
R v Bates [2021] QCA 229
Case
[2021] QCA 229
Decision Date

CaseChat Overview and Summary

The case of R v Bates involved the appellant who had pleaded guilty to multiple charges, including unlawfully using a motor vehicle to facilitate the commission of an indictable offence, break and enter premises and steal, and arson. The appellant was sentenced to imprisonment by the District Court, with a head sentence of three years for the arson and concurrent sentences for the other offences. The appellant, who was 22 years old at the time of the offences and had no prior criminal history, appealed against the sentence, arguing it was manifestly excessive. The appeal was heard by the Queensland Court of Appeal.

The primary legal issue before the Court of Appeal was whether the sentence imposed by the District Court was manifestly excessive or inadequate. Specifically, the Court had to consider whether the requirement for the appellant to serve a six-month custodial component in the three-year sentence was justified, given the appellant’s age, lack of criminal history, and good prospects for rehabilitation. The Court also needed to determine if the sentencing judge had properly applied the relevant sentencing principles.

The Court of Appeal found that the sentencing judge had erred in her application of the sentencing principles. The Court held that the requirement for actual custody in this case was not justified as the appellant was a young, first-time offender with good prospects for rehabilitation. The Court emphasised that the dominant consideration should have been the reformation of the offender rather than general deterrence, which was already adequately addressed by the length of the head sentence. The Court concluded that the inclusion of a six-month custodial component was not necessary and represented an error in the application of sentencing principles. Consequently, the Court allowed the appeal and varied the orders of the District Court.

The Court set aside the parole release date and ordered the appellant be released on parole on 18 October 2021. The Court also ordered the appellant to pay restitution of $18,000 to R and K Bulk Haulage Pty Ltd within six months. Failure to comply with this restitution order would result in the appellant being required to attend the District Court at Toowoomba on 26 April 2022 to show cause why imprisonment should not be enforced.

Orders

Orders of the court

Date of Orders: 18 October 2021

1. Leave to appeal granted.

2. Appeal allowed.

3. Vary the orders of Rosengren DCJ by setting aside the parole release date and, instead, ordering that the appellant be released on parole on 18 October 2021.

4. The appellant pay restitution in the name of R and K Bulk Haulage Pty Ltd, in the sum of $18,000, to be paid to the Registrar of the District Court at Toowoomba, for payment to the complainant on count 4 of the indictment, such sum to be paid within 6 months.

5. In the event that the appellant fails to pay such restitution, he shall attend before the District Court of Queensland at Toowoomba on the 26 April 2022 to show cause why imprisonment should not be enforced because of his failure to comply with the order.

Background

Background to the litigation

In the present case, the sentencing judge observed that the appellant was 22 at the time of the offending, and 23 at the time of the sentencing and did not have a criminal history. Her Honour acknowledged that the appellant was to be sentenced on the basis that he was a relatively young man still who had taken positive steps towards his rehabilitation. However her Honour then explained her approach to those considerations in these terms (emphasis added):“While these [considerations] are incapable of negating the gravity of the offending, it obviously raises some relevant considerations. They cannot overshadow the need for a sentence that properly reflects the appropriate punishment for the offending and to have regard to the matters of general deterrence. In other words the fact of your relative youth, whilst it is a consideration, it cannot operate to reduce a sentence that is so distorted as to bear no proper relationship to the sentencing principles to be applied to the particular offending.While imprisonment is a punishment of last resort, in my view a sentence involving a short term of actual custody is required. As I have explained, the objective facts of your offending were serious, and the paramount sentencing consideration here is general deterrence. Members of our community, whether or not in the grip of substance abuse, must know that if they commit this sort of offending, they will very likely go to jail. Having said this, for a 23 year old who has not encountered the criminal justice system before, the requirement to serve six months of actual custody, in my view, involves a real and substantial punishment, coupled with the threat of the balance of the sentence being activated. While this is well under the third, in my view a period of actual custody more than this may jeopardise your prospects of rehabilitation without corresponding advantages in terms of personal or general deterrence.” In our view, the sentencing remarks reveal that her Honour’s sentence cannot have been arrived at by a proper application of the sentencing principles to which we have referred. First, her Honour regarded a sentence which did not involve actual custody as not within the range of a proper exercise of the sentencing discretion because it would be a distortion of the sentencing principles to be applied. As R v Kelley and R v Hamstra make clear, that view was wrong. The sentencing judge should have accepted the submission advanced to her by counsel for the Crown that it was open to her to structure a sentence which did not involve actual custody. Second, we consider that identification of general deterrence as the paramount sentencing consideration and the justification for requiring 6 months actual custody in the context of a head sentence of imprisonment could not be regarded as a proper application of the sentencing principles explained in R v Hopper; Ex parte Attorney-General (Qld)[8] and in R v Hamstra. There was nothing, in the particular circumstances of this case, which suggested that reformation of this youthful first offender with good prospects of rehabilitation should not have been regarded as the dominant consideration in determining the appropriate punishment to be imposed, and certainly in determining whether actual custody was required. Her Honour should have concluded that general deterrence was sufficiently reflected in the imposition of the 3 year head sentence and should have asked herself, having regard to the sentencing principles identified in R v Hopper; Ex parte Attorney-General (Qld) and in R v Hamstra, whether any useful purpose would be served by requiring the short period of actual custody.[8][2015] 2 Qd R 56, the relevant part of which is quoted in the extract from R v Kelley above.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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