SUPREME COURT OF QUEENSLAND
CITATION:
R v BEB [2023] QCA 105
PARTIES:
R
v
BEB
(applicant)FILE NO/S:
CA No 55 of 2022
SC No 1926 of 2018
SC No 1620 of 2020
SC No 258 of 2022DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Supreme Court at Brisbane – Date of Sentence: 11 March 2022 (Applegarth J)
DELIVERED ON:
19 May 2023
DELIVERED AT:
Brisbane
HEARING DATE:
25 August 2022
JUDGES:
Morrison and McMurdo and Bond JJA
ORDER:
Application for leave to appeal against sentence refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE: WHAT CONSTITUTES – where the applicant was convicted on his own plea of guilty of committing a range of serious offences against four victims – where the two most serious offences were attempted murder and rape against a child – where, on each offence, the sentencing judge sentenced the applicant to life imprisonment – where the effect of the sentences was that the applicant would not become eligible for parole until he had served 15 years’ imprisonment and, if paroled, he would be subject to parole for life – where the sentencing judge determined that the two most serious offences were so grave as to warrant the imposition of the maximum penalty – whether the sentencing judge erred in his application of R v Nagy [2004] 1 Qd R 63 such that he imposed a penalty on the two most serious accounts exceeding that which would have been imposed if all counts had been sentenced separately – whether the sentencing judge erred in adopting a stepped approach to the determination of an appropriate head sentence – whether the sentence imposed was manifestly excessive in all the circumstances
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, considered
R v Ali[2018] QCA 212, considered
R v Armstrong[2016] QCA 243, cited
R v Bowditch [2014] QCA 157, cited
R v Kilic (2016) 259 CLR 256; [2016] HCA 48, cited
R v Kruezi (2020) 6 QR 119; [2020] QCA 222, cited
R v Mahony & Shenfield[2012] QCA 366, considered
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered
R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited
R v Symss[2020] QCA 17, consideredCOUNSEL:
C R Smith for the applicant
P J McCarthy QC for the respondentSOLICITORS:
Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent
MORRISON JA: I agree with the reasons of Bond JA and the order proposed by his Honour.
McMURDO JA: I have had the advantage of reading in draft the judgment of Bond JA, which allows me to confine my judgment to the point on which I disagree with his Honour. In my opinion, the sentencing judge erred in his application of what in this jurisdiction is commonly described as the Nagy approach.[1]
[1]From
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- AGLC
- R v BEB [2023] QCA 105
- Case
- [2023] QCA 105
- Decision Date
CaseChat Overview and Summary
The court found that the sentencing judge had correctly rejected the approach criticised by the High Court in Markarian and did not engage in any impermissible methodology in determining the sentences. The court also found that the sentencing judge had correctly considered the overall criminality of the applicant and the objective seriousness of the offences in determining an appropriate head sentence. The court found that the sentence imposed was not manifestly excessive, given the gravity of the offences and the need to protect the community from the applicant’s offending. The court rejected the applicant’s argument that a finite sentence of around 18 years would have been appropriate and found that a life sentence was necessary to achieve the purposes of denunciation, deterrence, and protection of the community.
The court ordered that the application for leave to appeal against sentence be refused. The sentencing judge had correctly considered the relevant principles and factors in determining an appropriate sentence, and the sentence imposed was not manifestly excessive. The court found that the sentencing judge had exercised his discretion appropriately in determining the sentence, and that there was no basis for interfering with the sentence imposed.
Orders
Orders of the court
Application for leave to appeal against sentence 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
Ratio Decidendi
Legal Principle Established
The sentencing judge found that the applicant’s unstable personality, impulsiveness and propensity for violence pointed to the need for a sentence which protected the community from such offending.Adjustment of concurrent sentences where only some attract SVO declarations The sentencing judge acknowledged that one complexity in the application of Nagy concerned arriving at a head sentence which attracted a serious violent offender declaration when some of the lesser concurrent sentences were for offences which would not attract that declaration. He stated, correctly, that he would make appropriate adjustments to the lesser offences so that relevant periods in relation to those offences were not distorted.The principal issue: a head sentence of life or of a finite term The sentencing judge acknowledged that the principal issue as distilled by counsel was whether the head sentence should attract a life sentence or a finite term. His Honour summarised the submissions which had been advanced on behalf of the present applicant. He considered and rejected the submission which had been advanced that denunciation, deterrence and protection of the community could be achieved by the imposition of a sentence in the order of 18 years in relation to the most serious offence offences. In the course of so doing the sentencing judge made the following points. First, a finite sentence would attract an automatic serious violent offence declaration requiring appropriate adjustment to other concurrent sentences. Second, the identification of an appropriate finite head sentence would need to reflect the applicant’s overall criminality. Third, serious cases of rape frequently warrant sentences in excess of 10 years and on occasion, life sentences. If the applicant was simply facing three counts of rape, then the head sentence imposed on count 8 would be well in excess of 10 years to reflect:(a)each rape, the associated acts of indecency and the assault occasioning bodily harm charge;(b)TJ’s age and vulnerability;(c)the significant violence used and physical and enduring psychological injuries which she suffered;(d)the betrayal of trust and the fact that each offence was a domestic violence offence;(e)the applicant’s apparent lack of remorse following arrest. Fourth, in relation to the offence of attempted murder:(a)General principles governing such sentences were stated by Burns J in R v Ali [2018] QCA 212. In that decision, Burns J (with whom Fraser and Gotterson JJA agreed) observed at [27] (emphasis added and footnotes in original):“This Court has observed on a number of previous occasions that the appropriate range for the crime of attempted murder is generally between 10 and 17 years[10] but, when assessing the objective seriousness of any such offence, much will depend on a range of factors such as the nature of the attack, its duration, the degree of any planning, whether the assailant voluntarily desisted,[11] whether a weapon was used and the severity of the physical and/or psychological injuries caused to the victim. That is why sentences for this crime of intention vary greatly depending on the extent to which the intention to kill was put into effect by the offender’s acts.[12] It follows that sentences above and below that general range may be called for in appropriate cases.”(b)Although the sentencing judge did not quote the passage from Ali, he specifically stated that the factors which might affect the objective seriousness of an offence of attempted murder included the considerations identified in bold. He had earlier stated that in the circumstances before him it was difficult if not impossible to treat the attempted murder in isolation from the rapes and other offences which preceded it.(c)He referred to R v Williams [2015] QCA 276 in which a sentence of 15 years imprisonment for attempted murder was upheld following trial in which the only issue was intent. He acknowledged that the offender in that case did not have the applicant’s criminal history but that the offence was more premeditated than the present.(d)He acknowledged that no weapon was used but remarked that the applicant did not need one to overpower a nine-year old girl. In any event he had used her clothing as a kind of weapon. He repeated that the applicant had left TJ for dead and, quite apart from the injuries caused by the rapes, the brutality of telling her she would be sacrificed and leaving her for dead caused injury in other ways.(e)He specifically referred to Mahony & Shenfield. Although he acknowledged that that case involved perversion and degradation of a different kind and over a longer period, it was an example of broadly similar circumstances to the applicant’s offending in which the conduct was so grave as to warrant a life sentence for attempted murder and a life sentence for rape.(f)Focussing on the attempted murder in the context of the acts of rape and other indecency leading up to it, the sentencing judge concluded that the offence of attempted rape in the applicant’s case was so grave in the circumstances that it may warrant the imposition of the maximum penalty.[10]R v Reeves [2001] QCA 91 at 5; R v Rochester; ex parte A-G (Qld) [2003] QCA 326 at [31]; R v Sauvao [2006] QCA 331 at 4.[11]As to which, see s 538 of the Criminal Code (Qld) which has the effect of reducing the maximum penalty for this offence from life imprisonment to 14 years if it is proved that “the person desisted of the person’s own motion from the further prosecution of the person’s intention, without its fulfilment being prevented by circumstances independent of the person’s will”, which provision is discussed and explained in R v Witchard & Ors; ex parte A-G (Qld) [2005] 1 Qd R 428; [2004] QCA 429.[12]To paraphrase what was said by the Court in R v Tevita [2006] QCA 131 at [10].