R v Bowley

Case [2016] QCA 254

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bowley [2016] QCA 254

PARTIES:

R
v
BOWLEY, Jason Ben
(applicant)

FILE NO/S:

CA No 240 of 2015
DC No 23 of 2015
DC No 24 of 2015
DC No 25 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Hervey Bay – Date of Sentence: 10 September 2015

DELIVERED ON:

11 October 2016

DELIVERED AT:

Brisbane

HEARING DATE:

24 June 2016

JUDGES:

Fraser and Philip McMurdo JJA and Peter Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    The applicant is granted leave to appeal against the sentences.

2.   The appeal is allowed.

3.   The sentences are varied, by imposing a term of seven years imprisonment in lieu of each term of eight years imprisonment; a term of six years imprisonment in lieu of the imposed term of seven years imprisonment; and a term of two years and nine months imprisonment in lieu of each term of three years and three months imprisonment.

4.   The date on which the applicant is eligible to apply for parole is 10 March 2018.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the sentencing Judge made a finding that the offences were committed whilst the applicant was under the influence of illicit drugs – where s 9(9A) of the Penalties and Sentences Act 1992 (Qld) provides that voluntary intoxication of an offender by alcohol or drugs is not a mitigating factor for a court to have regard to in sentencing the offender – whether the sentencing Judge erred in concluding that the offences were committed whilst the applicant was under the influence of illicit drugs and accordingly did not properly give recognition to his mental condition as a mitigating factor

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the sentencing Judge made a finding that the offences were committed whilst the applicant was under the influence of illicit drugs – where the applicant alleges that the sentencing Judge should have given the applicant’s counsel the opportunity to make submissions before making such a finding – whether the sentencing Judge made the finding that the applicant was under the influence of drugs at the time of the offending in breach of the requirements of procedural fairness

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the sentencing Judge had determined to take into account the period of pre-sentence custody and had done so in relation to the parole eligibility date – whether the sentencing Judge erred by failing to give effect to non-declarable pre-sentence custody in relation to the head sentences

Criminal Code (Qld), s 27, s 668E
Evidence Act 1977 (Qld), s 132C
Penalties and Sentences Act 1992 (Qld), s 9(9A), s 159A

Kentwell v The…

Continue reading R v Bowley

Sign in free to access the full text

Details
AGLC
R v Bowley [2016] QCA 254
Case
[2016] QCA 254
Decision Date

CaseChat Overview and Summary

The case of R v Bowley involves an appeal against the applicant's sentences. The applicant contests the sentencing Judge's determination that the offences were committed whilst under the influence of illicit drugs, arguing this led to inadequate consideration of his mental condition as a mitigating factor. Additionally, he contends that the sentencing Judge made the finding of drug influence in breach of procedural fairness, without allowing his counsel to make submissions. Finally, he submits that the Judge erred by not accounting for non-declarable pre-sentence custody in relation to the head sentences.

The court was required to determine whether the sentencing Judge erred in concluding that the offences were committed under the influence of illicit drugs, thus not properly recognising the applicant's mental condition as a mitigating factor. It also had to assess whether the finding of drug influence was made in breach of procedural fairness, and if the Judge erred by failing to give effect to non-declarable pre-sentence custody in relation to the head sentences.

The court found that the applicant's intoxication was not in issue during the sentencing hearing, and therefore concluded there was no breach of procedural fairness. It also determined that the sentencing Judge had not properly considered the applicant's mental condition as a mitigating factor and had erred in not accounting for non-declarable pre-sentence custody in relation to the head sentences. The court granted the applicant leave to appeal against his sentences, allowed the appeal, and varied the sentences to impose shorter terms of imprisonment. Furthermore, the court set the date for the applicant's eligibility to apply for parole.

The court made the following orders: the applicant is granted leave to appeal against the sentences; the appeal is allowed; the sentences are varied to impose shorter terms of imprisonment; and the date on which the applicant is eligible to apply for parole is set as 10 March 2018.

Orders

Orders of the court

1. The applicant is granted leave to appeal against the sentences.

2. The appeal is allowed.

3. The sentences are varied, by imposing a term of seven years imprisonment in lieu of each term of eight years imprisonment; a term of six years imprisonment in lieu of the imposed term of seven years imprisonment; and a term of two years and nine months imprisonment in lieu of each term of three years and three months imprisonment.

4. The date on which the applicant is eligible to apply for parole is 10 March 2018.

Background

Background to the litigation

The applicant has applied for leave to appeal against his sentences. His primary grounds are that the sentencing Judge wrongly concluded that the offences were committed whilst the applicant was under the influence of illicit drugs and accordingly did not properly give recognition to his mental condition as a mitigating factor; that the finding that the applicant was under the influence of drugs at the time of the offending was made in breach of the requirements of procedural fairness; and that the sentencing Judge erred by failing to give effect to non-declarable pre-sentence custody in relation to the head sentences.Background The applicant was 23 years of age, both at the time of the offending and of sentence. He had a criminal history both in New South Wales and Queensland which, in the context of the present offences, might be regarded as neither particularly significant nor extensive. It did include some drug-related offending, and some offences involving violence. However, a custodial sentence had not previously been imposed. In August 2014 he had been sentenced for offences committed between May and July of that year, a number of which related to drug use, and including a charge of unlawful use of motor vehicles, aircraft or vessels. He was then sentenced to 18 months’ probation. In October 2014 he was sentenced for an offence committed earlier that month of possessing explosives without authority, and a fine was imposed. Given the matters raised in this application, it is unnecessary to describe in detail the applicant’s offences. Their serious nature was rightly recognised by the sentencing Judge, and is acknowledged in the applicant’s submissions. However, I shall make some brief observations about them. On the first two occasions, the applicant went to the premises of a sex worker. On both occasions, he grabbed the complainant by the neck or throat. On each of these occasions he was accompanied by another person. On the first occasion he used a knife. On each of these occasions, the complainant was robbed. On the first occasion the applicant claimed to be “the pimp” and said, “I get girls to work for me”. He also pretended that he was working for a “boss”. Shortly after the second occasion on which the applicant committed these offences, he was apprehended but then released on bail. The third occasion for the applicant’s offending was a little less than three weeks later. He went to the house of a person he knew, but which he had been asked not to visit. He was with another person. The complainant was alone. He asked if he could enter, and then did so. The applicant then asked whether the complainant had cannabis or money and the complainant said that he did not have anything. The applicant and his associate then began to hit the complainant. The applicant produced something that looked like a gun and which was capable of firing a projectile, but was not a conventional weapon. It was discharged, and the complainant later found several little bits of lead in his shoulder. The complainant managed to escape.Material before sentencing Judge

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I also consider that in those circumstances, it is appropriate to alter the date on which the applicant is eligible for parole. The applicant contended for 10 March 2018. The respondent did not contend that, if the applicant’s submissions were otherwise accepted, this date was inappropriate. In the context of the sentences which I would otherwise impose, I am prepared to accept the applicant’s submission.Conclusion Strictly speaking, the conclusions which I have reached make it unnecessary to determine whether the finding of intoxication was made in breach of the requirements of procedural fairness. However, it is apparent from the submissions made on behalf of the applicant in the sentencing hearing that his intoxication was not in issue. I do not consider that there was a breach of those requirements. I would make the following orders:-(a)The applicant is granted leave to appeal against the sentences.(b)The appeal is allowed.(c)The sentences are varied, by imposing a term of seven years imprisonment in lieu of each term of eight years imprisonment; a term of six years imprisonment in lieu of the imposed term of seven years imprisonment; and a term of two years and nine months imprisonment in lieu of each term of three years and three months imprisonment.(d)The date on which the applicant is eligible to apply for parole is 10 March 2018.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.