R v Carey

Case [2024] QCA 69

SUPREME COURT OF QUEENSLAND

CITATION:

R v Carey [2024] QCA 69

PARTIES:

R
v
CAREY, Joshua Steven
(applicant)

FILE NO/S:

CA No 223 of 2023
DC No 284 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore – Date of Sentence: 15 November 2023 (Cash KC DCJ)

DELIVERED ON:

3 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

10 April 2024

JUDGES:

Mullins P and Dalton JA and Cooper J

ORDER:

Application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to burglary, by breaking, with property damage and grievous bodily harm – where the applicant was sentenced to a head sentence of 3 years’ imprisonment and his parole release date was fixed after serving 12 months’ imprisonment – where the applicant suffered from post-traumatic stress disorder and abused alcohol – where the applicant submitted that the sentencing judge erred in finding the applicant’s post-traumatic stress disorder was of less significance in the sentencing discretion because of the violence inflicted by the applicant and that the offence was not an impulsive response to an act he mistakenly believed had been perpetrated on his partner by the complainant – where the applicant submitted that the sentencing judge erred in failing to acknowledge that the applicant’s diagnosis of alcohol abuse disorder was a symptom of his PTSD, causally connected to the commission of the offence and relevant to any assessment of the applicant's culpability and prospects for rehabilitation – whether the sentencing judge erred in exercising the sentencing discretion on the above bases – whether, otherwise, the sentence was manifestly excessive

Criminal Code (Qld), s 24
Penalties and Sentences Act 1992 (Qld), s 9(9A)

Egan v The Queen [2017] NSWCCA 206, approved
R v Adam (2022) 10 QR 343; [2022] QCA 41, cited
R v Campbell (2022) 300 A Crim R 360; [2022] QCA 135, followed
R v Coutts [2016] QCA 206, approved
R v MCT[2018] QCA 189, approved
R v Pham (2015) 256 CLR 550; [2015] HCA 39, followed
R v Tsiaras [1996] 1 VR 398; [1996] VicRp 26, followed
R v Verdins (2007) 16 VR 269; [2007] VSCA 102, followed
R v Yarwood (2011) 220 A Crim R 497; [2011] QCA 367, applied

COUNSEL:

K V Juhasz for the applicant
S J Gallagher for the respondent

SOLICITORS:

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

  1. MULLINS P:  I agree with Cooper J.

  2. DALTON JA:  I agree with the order proposed by Cooper J and with his reasons.

  3. COOPER J:  The applicant pleaded guilty on 19 April 2023 to burglary, by breaking, with property damage (count 1) and grievous bodily harm (count 2).  On 15 November 2023, he was sentenced to 18 months’ imprisonment on count 1 and to 3…

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AGLC
R v Carey [2024] QCA 69
Case
[2024] QCA 69
Decision Date

CaseChat Overview and Summary

The applicant, in this case, appealed against the sentence imposed following a guilty plea to burglary, by breaking, with property damage and grievous bodily harm. The matter was heard in the Court of Appeal, which had to determine whether the sentence was manifestly excessive or inadequate. The applicant argued that the sentencing judge had erred by not sufficiently considering the applicant's post-traumatic stress disorder (PTSD) and alcohol abuse disorder, both of which were relevant to the applicant's culpability and prospects for rehabilitation.

The court considered the arguments made by the applicant regarding the sentencing judge's handling of the mitigating factors. Firstly, the court found that the sentencing judge did not err in considering the applicant's PTSD of less significance due to the violence inflicted by the applicant, as it was a relevant factor in the sentencing discretion. Secondly, the court held that the sentencing judge did not err in failing to acknowledge that the applicant's alcohol abuse disorder was a symptom of his PTSD, causally connected to the commission of the offence. The court found that the sentencing judge adequately considered these factors, and the applicant's submission that the sentence was manifestly excessive was not upheld.

Based on the court's reasoning, it was determined that there was no misapplication of principle by the sentencing judge, and the sentence was not unreasonable or plainly unjust. Therefore, the application for leave to appeal against the sentence was refused. The court's decision was based on the consideration of all relevant sentencing factors and the absence of any error in the exercise of the sentencing discretion.

The final orders of the court were that the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

Application for leave to appeal against sentence is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given my conclusions on grounds 1 and 2, I am not persuaded that, having regard to all of the relevant sentencing factors, there must have been some misapplication of principle by the sentencing judge in the circumstances of this case which would justify appellate intervention on the ground that the sentence is manifestly excessive.[34] I do not consider that the sentence is unreasonable or plainly unjust[35] when regard is had to the aggravating features of the applicant’s offending identified by the sentencing judge (see [22] above). In these circumstances, ground 3 has not been made out.[34]R v Pham (2015) 256 CLR 550, 559 [28]. See also R v MCT [2018] QCA 189, [240].[35]R v MCT [2018] QCA 189, [240]Conclusion The application for leave to appeal against sentence should be refused.

Ratio Decidendi

Legal Principle Established

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