R v Blake - [2010] QCA 272

SUPREME COURT OF QUEENSLAND

CITATION:

R v Blake [2010] QCA 272

PARTIES:

R
v
BLAKE, Clayton Delaney
(applicant)

FILE NO/S:

CA No 86 of 2010
DC No 63 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

12 October 2010

DELIVERED AT:

Brisbane

HEARING DATE:

1 October 2010

JUDGES:

McMurdo P, Chesterman JA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Applicant granted leave to appeal.

2.    Appeal allowed.

3.    The sentence imposed on count 1 is set aside and the applicant is instead sentenced to a term of three years’ imprisonment. The parole eligibility date of 19 February 2011 should become instead a parole release date.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to one count of robbery and one count of fraud – where both offences were “low level” – where the convictions meant applicant was in breach of an intensive correction order – where the offences did not involve violence or premeditation and were committed in daylight with no attempt at concealment – where applicant had an extensive criminal history – where trial judge sentenced the applicant to three years and six months’ imprisonment for the robbery – whether sentence manifestly excessive

R v Campbell [1997] QCA 314, cited
R v Francis [1996] QCA 217, cited
R v Hill[2005] QCA 18, distinguished
R v Mallon [1997] QCA 58, distinguished
R v Moodie [1999] QCA 125, distinguished
R v Rogers [1998] QCA 382, cited

COUNSEL:

C L Morgan for the applicant
M B Lehane for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: I agree with Chesterman JA.

CHESTERMAN JA: On 19 March 2010 the applicant pleaded guilty to one charge of robbery and one of fraud. The convictions meant that he was in breach of a six month Intensive Correction Order imposed by the Magistrates Court at Ipswich on 20 October 2009 for offences of committing a public nuisance, and breaking and entering.

He was sentenced to three years and six months’ imprisonment for the robbery and 12 months’ imprisonment for the fraud. As well he was ordered to serve the balance of five months and one weeks’ imprisonment for breach of the Intensive Correction Order. All terms of imprisonment were to be served concurrently. 122 days spent in pre-sentence custody were declared to be time already served. A parole eligibility date was fixed for 19 February 2011.

The applicant seeks leave to appeal against the sentence imposed on the count of robbery on the ground that it is manifestly excessive.

The circumstances of the offences are conveniently summarised in the applicant’s written outline:

“Count 1: On 10 November 2009 the applicant and…

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 Blake

Details

AGLC: R v Blake [2010] QCA 272
Case: [2010] QCA 272
Decision Date: 12 October 2010

CaseChat Overview and Summary

The applicant, Blake, appealed against his sentence after pleading guilty to one count of robbery and one count of fraud. The offences were described as "low level", without violence or premeditation, committed in daylight with no attempt at concealment. However, these convictions breached an intensive correction order. The trial judge sentenced Blake to three years and six months' imprisonment for the robbery, a sentence Blake argued was manifestly excessive. The appeal raised the question of whether the sentence was disproportionate to the nature of the offences and the circumstances surrounding them.

The court considered the severity of the sentence in relation to the nature of the offences and the applicant's criminal history. The offences, though serious, were of a lower level and did not involve violence or premeditation. The court recognised Blake's extensive criminal history but also noted the lack of aggravating factors in these particular offences. The court concluded that the sentence was manifestly excessive given the circumstances and nature of the crimes committed.

In light of the court's determination, Blake was granted leave to appeal and the appeal was allowed. The original sentence of three years and six months’ imprisonment was set aside and replaced with a sentence of three years’ imprisonment. Additionally, the parole eligibility date was altered to a parole release date. This decision reflected the court's view that the original sentence did not appropriately balance the seriousness of the offences with the applicant's circumstances and the lack of aggravating factors present in this case.

Orders

Orders of the court

1. Applicant granted leave to appeal.

2. Appeal allowed.

3. The sentence imposed on count 1 is set aside and the applicant is instead sentenced to a term of three years’ imprisonment. The parole eligibility date of 19 February 2011 should become instead a parole release date.

Background

Background to the litigation

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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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CITATION:	R v Blake [2010] QCA 272
PARTIES:	R v BLAKE, Clayton Delaney (applicant)
FILE NO/S:	CA No 86 of 2010 DC No 63 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	12 October 2010
DELIVERED AT:	Brisbane
HEARING DATE:	1 October 2010
JUDGES:	McMurdo P, Chesterman JA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Applicant granted leave to appeal. 2. Appeal allowed. 3. The sentence imposed on count 1 is set aside and the applicant is instead sentenced to a term of three years’ imprisonment. The parole eligibility date of 19 February 2011 should become instead a parole release date.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to one count of robbery and one count of fraud – where both offences were “low level” – where the convictions meant applicant was in breach of an intensive correction order – where the offences did not involve violence or premeditation and were committed in daylight with no attempt at concealment – where applicant had an extensive criminal history – where trial judge sentenced the applicant to three years and six months’ imprisonment for the robbery – whether sentence manifestly excessive R v Campbell [1997] QCA 314, cited R v Francis [1996] QCA 217, cited R v Hill[2005] QCA 18, distinguished R v Mallon [1997] QCA 58, distinguished R v Moodie [1999] QCA 125, distinguished R v Rogers [1998] QCA 382, cited
COUNSEL:	C L Morgan for the applicant M B Lehane for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent