R v Cane

Case [2023] QCA 199

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cane [2023] QCA 199

PARTIES:

R
v
CANE, Mark
(applicant)

FILE NO/S:

CA No 199 of 2022
DC No 555 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns – Date of Sentence: 30 May 2022 (Fantin DCJ)

DELIVERED ON:

4 October 2023

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2023

JUDGES:

Mullins P and Boddice JA and Cooper J

ORDERS:

1.   Leave to appeal be granted.

2.   The appeal against sentence be allowed.

3.   The sentence below for the offence of kidnapping for ransom imposed on 30 May 2022 be varied by substituting “five years” for “six years”.

4.   All other orders made by the sentencing judge are confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to one count of kidnapping for ransom and one count of making a false declaration – where the sentence application only concerns the sentence imposed for the kidnapping for ransom count – where the applicant was sentenced in respect of that count to six years imprisonment with an immediate parole eligibility date, to be served cumulatively on any other term of imprisonment he was liable to serve – where the kidnapping for ransom count was contained on a three count indictment which included a count of common assault and a count of assault occasioning bodily harm, in company, alleged to have been inflicted upon the complainant during the commission of the kidnapping for ransom – where the Crown entered a nolle prosequi in respect of the two latter counts on the basis the agreed statement of facts on sentence would refer to acts of violence inflicted upon the complainant – where the applicant was sentenced on the kidnapping for ransom count on the basis he had committed those acts of violence – whether the sentencing judge erred in sentencing the applicant on the basis of uncharged acts

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – where the sentence hearing was complicated by the proper construction of the words “any other term of imprisonment the offender is liable to serve” in s 156A(2) of the Penalties and Sentences Act 1992 (Qld) – where the applicant committed the kidnapping for ransom whilst on parole for possessing dangerous drugs and related offending – where the applicant also committed an offence of dangerous operation of a motor vehicle after the kidnapping for ransom – where that offence was dealt with in the Magistrates Court prior to the sentence the subject of appeal – where the applicant submits the triggering event to activate the mandatory cumulative term of imprisonment under s 156A was the commission of a schedule 1 offence whilst on parole and that the words “liable to serve” relate to the liability to serve the sentence that is the triggering event – whether, on a re-exercise of…

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Details
AGLC
R v Cane [2023] QCA 199
Case
[2023] QCA 199
Decision Date

CaseChat Overview and Summary

The case of R v Cane concerns an appeal against the sentence imposed for the offence of kidnapping for ransom. The applicant, who had pleaded guilty to this offence, along with one of making a false declaration, was sentenced to six years imprisonment with immediate parole eligibility for the kidnapping count. The sentence hearing was complicated by the need to interpret the phrase "any other term of imprisonment the offender is liable to serve" in s 156A(2) of the Penalties and Sentences Act 1992 (Qld). The applicant, who had been on parole for possessing dangerous drugs and related offences at the time of the kidnapping, argued that the sentencing judge erred in considering uncharged acts of violence against the complainant and in only declaring 68 days pre-sentence custody as time to be served under the sentence.

The legal issues before the court were whether the sentencing judge erred in sentencing the applicant based on uncharged acts and whether the sentencing judge correctly interpreted the phrase "any other term of imprisonment the offender is liable to serve". The court considered whether the sentencing judge should have taken into account the uncharged acts of violence against the complainant and whether the mandatory cumulative term of imprisonment under s 156A was correctly applied.

The court found that the sentencing judge did err in sentencing the applicant on the basis of uncharged acts. The court held that a judge cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence. The court also found that the phrase "any other term of imprisonment the offender is liable to serve" in s 156A(2) of the Penalties and Sentences Act 1992 (Qld) should be interpreted to mean the triggering event to activate the mandatory cumulative term of imprisonment was the commission of a schedule 1 offence whilst on parole. The court held that the applicant should serve the kidnapping for ransom sentence cumulatively with the sentences imposed for both the dangerous operation of a motor vehicle and possessing dangerous drugs.

The court granted leave to appeal, allowed the appeal against sentence and varied the sentence below for the offence of kidnapping for ransom imposed on 30 May 2022 by substituting "five years" for "six years". All other orders made by the sentencing judge were confirmed.

Orders

Orders of the court

1. Leave to appeal be granted.

2. The appeal against sentence be allowed.

3. The sentence below for the offence of kidnapping for ransom imposed on 30 May 2022 be varied by substituting “five years” for “six years”.

4. All other orders made by the sentencing judge are confirmed.

Background

Background to the litigation

The applicant seeks leave to appeal against his sentence for the offence of kidnapping for ransom. Should leave be granted, the applicant relies on two grounds. First, the sentencing judge erred in sentencing the applicant on the basis of uncharged acts, being acts of violence against the complainant. Second, the sentencing judge erred in only declaring 68 days pre-sentence custody as time taken to be served under the sentence.Background The applicant was aged 56 at sentence and 53 at the time of the commission of the offence. He had an extensive past criminal history. Relevantly, that history included recent convictions for serious drug offending for which the applicant had been sentenced to imprisonment.[2] The applicant was on parole in respect of that sentence at the time of the commission of this offence.[2]Although initially sentenced to six years, six months imprisonment, on 25 November 2015 that sentence was reopened and the applicant’s sentence was reduced to five years, 11 months imprisonment. The count of kidnapping for ransom was contained on a three count indictment. The remaining counts were common assault and assault occasioning bodily harm, in company. All three counts were alleged to have been committed on the same day, against the same male complainant, by the applicant and two co-offenders. After the applicant pleaded guilty to the count of kidnapping for ransom, the Crown entered a nolle prosequi in respect of the remaining two counts, insofar as they related to the applicant.[3] That course of action was taken in circumstances where it was accepted by the applicant that the agreed statement of facts on sentence for the kidnapping for ransom count would refer to acts of violence inflicted upon the male complainant during the commission of the kidnapping for ransom count.[3]The applicant had been charged with those counts on the basis of his liability as a party.Sentence hearing Relevantly, the agreed statement of facts stated:(a)The complainant owed the applicant $3,500 and the applicant wanted that money returned to him. At the same time, the complainant was owed various sums of money from people in the surrounding area. The applicant told the complainant to obtain the money from these people. The applicant had made unsuccessful attempts to obtain those outstanding sums.(b)On 9 August 2019, the applicant called and messaged the complainant numerous times. The voicemails captured conversations between the applicant and his co-offenders in relation to those debts.(c)Shortly before 2.00 pm on 9 August 2019, the applicant and his co-offenders ordered the complainant into a vehicle before one of the co-offenders punched the complainant in the face and demanded he empty his pockets. The complainant offered to go and see other people who owed him money. The applicant threatened that if he did not obtain the money, he would go to the complainant’s mother’s house and get the money from her. He also threatened the complainant.(d)Thereafter, the applicant, his co-offenders and the complainant attended other residences and work areas, seeking to recover outstanding debts owed to the complainant. During this period, the complainant was punched by one of the co-offenders at various times throughout the afternoon.(e)The attempts to obtain the outstanding monies were unsuccessful and the applicant, his co-offenders and the complainant returned to a unit where the complainant unsuccessfully sought to contact a number of people via text and Facebook messages seeking money. Whilst at the unit, the applicant told the complainant to sit in a chair. The applicant and his co-offenders punched the complainant to the head multiple times causing him extreme pain and leaving him fearful for his life.(f)Throughout that afternoon, the applicant and his co-offenders continued to assault the complainant. One of the co-offenders hit the complainant in the head with a chair with metal legs. There was a discussion between the applicant and one of his co-offenders about “knocking” the complainant, putting him into a car and setting it alight. One of the co-offenders turned the kettle on and threatened to pour boiling water over the complainant.(g)During the afternoon, the complainant contacted his mother, requesting money. He told her “I’m pretty banged up”. One of the offenders was heard to state, “What you think you’re banged up, mate? Cop this”. The mother heard the complainant being hit. Later, the complainant contacted his brother who could hear the complainant crying and grunting as he was hit by one of the offenders.(h)It was arranged between the complainant and his brother that they would meet at a shopping centre where the brother would give the applicant and his co-offenders $1,500. The applicant told the brother to bring that money where they would arrange a “payment plan” for the remainder of the money. The applicant threatened to break the complainant’s legs if payment was not made.(i)Unbeknown to the applicant and his co-offenders, the complainant’s brother and mother had contacted police who arranged to covertly attend the meeting place. This resulted in delay. During this period, the applicant struck the complainant in the face.(j)At one point, a female associate of the applicant arrived at the unit. She observed the complainant with a swollen black eye. It looked like his eye was popping out of his head. The applicant threatened her as she also owed the applicant money. He told her police did not know her car and she had to drive them to meet the complainant’s brother to collect the money, or “she would end up like [the complainant]”.(k)The female associate drove the applicant, one of the co-offenders and the complainant to the meeting place. The applicant told the complainant to get the money from his brother and to meet him at a fast food outlet. The complainant was found by police and taken to hospital for treatment.(l)When police sought to arrest the applicant and his co-offenders on 10 August 2019, the applicant drove at speed, drifting across three lanes of traffic.[4][4]This conduct was the subject of a charge of dangerous operation of a motor vehicle to which the applicant pleaded guilty in the Magistrates Court.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The sentencing judge concluded:“The Crown submitted for a head sentence of six years and six months on the kidnapping offence, after moderation down to reflect the significant period you’ve spent in custody that is not declarable and to take into account considerations of totality, having regard to what you may have received if you had been sentenced at the same time as the dangerous operation of a motor vehicle offence. The Crown also submitted you should receive an immediate parole eligibility date and the Court should declare 68 days of presentence custody as time served under the sentence.Your barrister’s submissions were not, in the end, a significant distance apart. However it was submitted that the Court could moderate your sentence down to one of five to five years and six months imprisonment with an immediate parole eligibility date. He accepted that the Court could only declare 68 days of pre-sentence custody as time served under the sentence.The Crown also submitted that the sentence for the second offence of making a false declaration should be one of three months imprisonment to be served concurrently with all of that time declared as time served. So, in effect, the sentence for the making of the false declaration will be subsumed in the head sentence on the kidnapping.The sentencing exercise is not one of mathematical precision. In my view, your sentence would ordinarily be higher than your co-offenders for the reasons identified. On the other hand, it must be moderated down to take into account the long period you’ve served in custody that is not declarable and for considerations of totality. There would ordinarily be some elevation in it, however, to reflect the false declaration offence. I’m doing the best I can to balance those considerations which pull in different directions. I intend to fix a sentence of six years imprisonment on the kidnapping and set your parole eligibility date at tomorrow, which is 31 May 2022. You will be able to apply for parole immediately. When you will ultimately be released on parole will be up to the parole board.”Consideration As to the first ground of appeal, the applicant submits the sentencing judge erred in sentencing him on the basis of uncharged acts, being acts of violence against the complainant. In R v De Simoni (1981) 147 CLR 383, Gibbs CJ observed at [8]:“At first sight it might seem unlikely that the framers of the Code intended that an offender should be sentenced on the fictitious basis that no circumstances of aggravation existed when it is found by the trial judge that such a circumstance did exist, particularly when such a finding is based upon an unchallenged statement of facts made by the prosecutor after the offender has pleaded guilty. However, the general principle that the sentence imposed on an offender should take account of all of the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.”