R v Brown

Case [2024] QCA 20

SUPREME COURT OF QUEENSLAND

CITATION:

R v Brown [2024] QCA 20

PARTIES:

R
v
BROWN, Adam Curtis
(applicant)

FILE NO/S:

CA No 226 of 2022
SC No 889 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 7 October 2022 (Davis J)

DELIVERED ON:

23 February 2024

DELIVERED AT:

Brisbane

HEARING DATE:

14 February 2024

JUDGES:

Mullins P, Bond JA and Applegarth J

ORDERS:

1.   Application to adduce additional evidence refused.

2.   Application for leave to appeal against sentence refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where the applicant applied to adduce evidence on an application for leave to appeal against sentence – where the applicant pleaded guilty – where an agreed statement of facts was the factual basis for the sentencing – where the agreed statement of facts was based on the prosecution’s brief of evidence – where the additional evidence was known or available to the applicant or his lawyers at the time of sentencing – whether a miscarriage of justice arose from the agreed statement of facts being based primarily on the prosecution’s evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE –  GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of malicious act with intent and two other offences – where the applicant was sentenced to imprisonment for nine years for one malicious act with intent offence and a concurrent sentence of imprisonment of seven years for the other malicious act with intent offence – where a serious violent offence declaration was made in respect of each malicious act with intent offence – whether the serious violent offence declaration made the sentence unreasonable or plainly unjust

R v Free; Ex parte Attorney-General(Qld) (2020) 4 QR 80; [2020] QCA 58, cited
R v Hughes [2004] 1 Qd R 541; [2003] QCA 460, cited
R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited

COUNSEL:

The applicant appeared on his own behalf
B M White for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

  1. THE COURT:  On 26 May 2022, Mr Brown pleaded guilty to two counts of malicious act with intent, one count of wounding and one count of assault occasioning bodily harm while armed.  He had been charged with two counts of attempted murder but the prosecution accepted the guilty pleas to the alternative counts of malicious act with intent in satisfaction of those charges.  The sentencing was adjourned to enable a psychological or psychiatric report to be obtained for the purpose of the sentencing.

  2. The sentencing proceeded on 7 October 2022 on an agreed statement of facts.  Mr Brown was sentenced to nine years’ imprisonment for malicious act with intent committed against the male complainant, seven years’ imprisonment for malicious act with intent committed against the female…

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Details
AGLC
R v Brown [2024] QCA 20
Case
[2024] QCA 20
Decision Date

CaseChat Overview and Summary

The case of R v Brown involved Mr Brown, who appealed against the sentence he received after pleading guilty to two counts of malicious act with intent and two other offences. The sentencing judge imposed a term of imprisonment for nine years on one count of malicious act with intent and a concurrent term of imprisonment for seven years on the other count of malicious act with intent. A serious violent offence declaration was made in respect of each count. Mr Brown sought to adduce additional evidence in support of his application for leave to appeal against his sentence, which the court considered. The legal issues the court was required to decide were whether the additional evidence could be admitted and whether the serious violent offence declarations rendered the sentence manifestly excessive or plainly unjust.

The court found that the application to adduce additional evidence must be refused, as the evidence was known or available to Mr Brown or his legal representatives at the time of sentencing. Furthermore, the court found that the serious violent offence declarations did not render the sentences manifestly excessive or plainly unjust. The sentencing judge had taken into account all the mitigating circumstances when setting the head sentence and had exercised the discretion to make the serious violent offence declarations based on the aggravating features of the offences. The randomness and unprovoked nature of the attacks, along with the age of the female complainant, were relevant factors in making the declarations. The court concluded that the sentences were reasonable and did not amount to a miscarriage of justice.

The court made two orders: firstly, the application to adduce additional evidence was refused; and secondly, the application for leave to appeal against the sentence was also refused. The court found that the sentences imposed were appropriate and did not result in a manifestly excessive or plainly unjust outcome.

Orders

Orders of the court

1. Application to adduce additional evidence refused.

2. Application for leave to appeal against sentence refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The sentencing judge explained how the sentences were arrived at in these terms:“The Crown submits that a term of imprisonment of 12 to 13 years is appropriate. That would automatically attract a serious violent offence declaration. Various authorities have been cited to me by way of comparatives, which I have generally taken into account as a yardstick against which to measure the sentences I am about to impose. Like all comparatives, they are used just generally as a measure of comparison. It is not my function to reconcile the comparatives or reconcile the comparatives with your case.It is difficult and neither of the barristers have been able to find a case which is really anywhere near close to the present case. Your experienced barrister … submits that a sentence of nine years ought to be the effective head sentence and he concedes that a serious violent offence declaration is inevitable. That is a significant concession because once that concession is made, and it becomes obvious that a serious violent offence declaration ought to be made, it means consistently with the authorities that all mitigating circumstances must be taken into account when setting the head sentence.”Application for leave to adduce evidence Mr Brown did not swear an affidavit to support his application to adduce evidence that was outside the materials that were before the sentencing judge. The prosecution brief of evidence was the source of the agreed statement of facts. The prosecution brief of evidence includes a range of material gathered as part of the investigation not all of which was relied on by the prosecution for the purpose of the sentencing. It is common for the statement of facts prepared for a sentencing hearing to be based primarily on a complainant’s evidence and not the assertions of the accused person. The agreed statement of facts in this matter reflects the prosecution’s distillation of the material that was in the prosecution brief in respect of which Mr Brown’s legal representatives agreed on his behalf before the arraignment that it would form the factual basis for the sentencing before the sentencing judge. This allowed the matter to proceed to sentencing on the counts to which Mr Brown pleaded guilty, rather than proceeding to trial on the counts on the indictment. The agreed statement of facts does record some specific statements made by Mr Brown to the psychiatrist on 28 April 2018 and in telephone calls with his mother whilst in custody that accord with the explanation for his conduct that he sets out in his submissions on this application but those statements are expressly noted in the statement of facts as not forming part of the basis of the sentence. It was apparent from Mr Brown’s oral submissions that he had signed the agreed statement of facts for his legal representatives. There is a statement in the agreed statement of facts that a blood sample from Mr Brown was not tested to confirm the suspected overdose of dexamphetamine. The sentencing proceeded on the basis that he was intoxicated after taking dexamphetamine prior to the offending (which is what he had informed the psychiatrist on 28 April 2018 and what Dr Hatzipetrou recorded in his report). Mr Brown referred to his medical records from the hospital to which he was admitted on 27 April 2018 that shows that blood samples were taken. Mr Brown was unable to interpret those records in his submissions and the analyses referred to in the records were not fully comprehensible without any assistance in the interpretation of them. In any case, as Mr Brown also ingested dexamphetamine tablets after the offending, there was no point in testing his blood for the presence of dexamphetamine. The medical records that Mr Brown seeks to adduce therefore do not controvert the agreed statement of facts.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The application to adduce additional evidence must be refused.Did the serious violent offence declarations make the sentences manifestly excessive? Mr Brown’s submissions that the serious violent offence declarations made the sentences for the two counts of malicious act with intent excessive depended on his succeeding in adducing the additional evidence. On the material that was before the sentencing judge, it cannot otherwise be shown that the exercise of the discretion to declare the convictions on the malicious act with intent counts to be convictions for serious violent offences was unreasonable or plainly unjust. The principles that apply to the exercise of the discretion to make a serious violent offence declaration are set out in R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80 at [45]-[48]. The Court then stated at [53] (with the reference to sentencing for sexual offending in relation to children which was relevant in Free omitted):“Where a case calls for consideration of whether to exercise the discretion to make a serious violent offence declaration, as part of the integrated process, what the sentencing court is required to do is consider all relevant circumstances … to determine whether there are circumstances which aggravate the offence in a way which suggests that the protection of the public, or adequate punishment, requires the offender to serve 80 per cent of the head sentence before being able to apply for parole.” All the mitigating features in Mr Brown’s favour were factored into the reduction of the effective head sentence for the malicious act with intent offence committed against the male complainant to imprisonment for nine years. It was for the sentencing judge as part of the integrated sentencing process to decide whether or not all the circumstances in which the malicious act with intent offences were committed by Mr Brown required him to serve 80 per cent of the sentence before becoming eligible for parole. The sentencing judge had identified in the sentencing remarks the aggravating features of the malicious act with intent offences that were also relevant to the exercise of the discretion to make serious violent offence declarations. These were that the “completely innocent” complainants were injured in a “senseless and unprovoked attack with a weapon”. Mr Brown was a mature man who used a Stanley knife to attack the male complainant with whom he was negotiating to purchase a printer for no apparent reason and with whom he otherwise had no pre-existing relationship or acrimony. Even though the attack was not premeditated, the randomness of the use of violence by Mr Brown that resulted in the life-threatening injury to the male complainant was most relevant in considering whether the serious violent offence declaration should be made as part of the sentence to ensure that Mr Brown was adequately punished for his offending. In the case of the female complainant, not only was there the randomness of the attack on someone who was a bystander, her age aggravated the offending. It cannot be said that it was not open to the sentencing judge to make the serious violent offence declarations when two malicious acts with intent offences were committed in the one episode of offending.