R v Benecke

Case [2024] QCA 86

SUPREME COURT OF QUEENSLAND

CITATION:

R v Benecke [2024] QCA 86

PARTIES:

R
v
BENECKE, Paul Anthony
(applicant)

FILE NO/S:

CA No 189 of 2023
DC No 223 of 2022
DC No 416 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich – Date of Sentence: 31 July 2023 (Lynch KC DCJ)

DELIVERED ON:

17 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

2 May 2024

JUDGES:

Morrison and Boddice JJA and Crowley J

ORDERS:

1.   The applicant is given leave to adduce further evidence.

2.   The application for leave to appeal against sentence is granted.

3.   The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant committed the offence of arson – where the applicant committed the offence of using a carriage service to make threats and improper use of an emergency call service – where the applicant was on parole for manslaughter at the time of the offending – where the applicant was unlawfully at large – where the offending was serious – where the applicant had relevant prior convictions – where reference was made by the sentencing judge to an existing period of imprisonment – where the sentencing judge applied the principle of totality – where the applicant was not required to serve any part of the additional sentence in actual custody – whether the fixing of the parole eligibility date on the full-time expiry of his existing sentence for manslaughter rendered the sentence manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE – where parole eligibility was fixed at the full-time expiry date for his existing sentence – where the applicant sought leave to adduce an amended pre-sentence custody certificate – where the applicant contended that the details of the sentence the applicant was currently serving were wrongly stated on the pre-sentence custody certificate – whether the sentencing judge was led into error in respect of the length of the sentence the applicant was serving

Corrective Services Act 2006 (Qld), s 209(1)
Justice and Other Legislation Amendment Act 2020 (Qld), s 164
Penalties and Sentences Act 1992 (Qld), s 159A, s 160F

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, cited
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited
R v Gordon (1994) 71 A Crim R 459, considered
R v Johnson[2014] QCA 13, considered
R v WBK (2020) 4 QR 110; [2020] QCA 60, considered
R v Wilson (2022) 10 QR 88; [2022] QCA 18, cited

COUNSEL:

M F Bonasia for the applicant
B M White for the respondent

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Details
AGLC
R v Benecke [2024] QCA 86
Case
[2024] QCA 86
Decision Date

CaseChat Overview and Summary

The case of R v Benecke involved an appeal against sentence by the applicant who had been convicted of arson, making threats and improper use of an emergency call service. The applicant was on parole for manslaughter at the time of the offending and was unlawfully at large. The applicant was sentenced to a term of imprisonment with a parole eligibility date fixed at the full-time expiry of his existing sentence for manslaughter. The applicant sought to appeal the sentence on the grounds that it was manifestly excessive or inadequate and that fresh evidence had emerged after sentencing. The applicant argued that the details of the sentence he was currently serving were wrongly stated on the pre-sentence custody certificate and that this had led the sentencing judge into error.

The legal issues before the court were whether the fixing of the parole eligibility date on the full-time expiry of the applicant's existing sentence for manslaughter rendered the sentence manifestly excessive, and whether the sentencing judge was led into error in respect of the length of the sentence the applicant was serving. The court noted that the applicant had a background of deprivation and abuse, and had been largely institutionalised throughout his life. The court also noted that the applicant had expressed remorse and had made efforts to address his mental health issues whilst in custody.

The court found that the sentence was not manifestly excessive or inadequate, and that the applicant had not established that the sentencing judge was led into error in respect of the length of the sentence he was serving. The court granted the applicant leave to adduce further evidence and dismissed the appeal. The court found that the applicant's background and personal circumstances did not warrant a departure from the principle of totality, which requires that the overall sentence be proportionate to the seriousness of the offending. The court also found that the applicant had not demonstrated that the alleged error in the pre-sentence custody certificate had any bearing on the sentence imposed.

Orders

Orders of the court

1. The applicant is given leave to adduce further evidence.

2. The application for leave to appeal against sentence is granted.

3. The appeal is dismissed.

Background

Background to the litigation

The applicant was arrested later that morning and remained in custody until the date he was sentenced.The applicant’s background and antecedents The applicant was 48 years of age when he committed the offences and 50 at the time of sentence. He had experienced an extremely detrimental and deprived upbringing. He had been the subject of abuse within his family at the hands of his father and also his mother, who had apparently attempted to kill him at a very young age. As a result, he had been placed into foster care. His father was said to be a violent alcoholic who had been violent to all members of the applicant’s family including the applicant and his siblings. The applicant’s education was fairly limited. He had attended school at BoysTown from about the age of 12, but was again subjected to physical abuse as well as sexual abuse. He absconded from that institution at age 15 and was then homeless and living on the streets. He had no formal employment history in the community, although he had undertaken work whilst in custody. He was a regular drug user. He had self-harmed in various ways throughout his life. A psychologist’s report tendered on behalf of the applicant noted that he had previously been diagnosed with a number of disorders during childhood. The psychologist expressed the view that the applicant likely met the criteria for a range of other disorders in his teens, which also remained current. The sentencing judge doubted the accuracy of all the past diagnoses but accepted that the applicant would qualify for diagnoses of post-traumatic stress disorder and depressive illness, conduct disorder, anti-social personality disorder and perhaps a borderline personality disorder. The sentencing judge did not accept that that the psychologist was qualified to diagnose the applicant as having a schizophrenia spectrum disorder. The sentencing judge also noted that the psychologist offered opinions about the applicant’s mental functioning at the time of the commission of the offences, but he doubted the psychologist was qualified to provide those opinions. He rejected the psychologist’s opinion that if the applicant continued to engage with support his prognosis was positive. Having regard to the applicant’s background, upbringing and personal circumstances, the sentencing judge stated that he had no doubt that the applicant’s conduct over a very long period of time had seen him largely institutionalised and his behaviours in the community had seen him commit many, many offences and be sentenced to many terms of imprisonment. He noted the applicant had not been medicated at the time of his recent offending and that he had admitted to being affected by substances when he committed the offences. In addition to his mental health issues, the applicant also suffered from chronic back pain, prostate cancer and sclerosis of the liver due to hepatitis C. The applicant had entered early pleas of guilty to each of the offences, which the sentencing judge accepted was evidence of his cooperation in the administration of justice. He had apologised for his conduct and expressed remorse in letters he had written to the owners of the destroyed building and to the police and emergency call operators. He had made efforts to address his mental health whilst in custody. The sentencing judge accepted the applicant’s letters of apology and his compliance with mental health treatments since he had been in custody as some evidence of remorse on his part.

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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