R v CCU

Case [2022] QCA 92

SUPREME COURT OF QUEENSLAND

CITATION:

R v CCU [2022] QCA 92

PARTIES:

R
v
CCU
(applicant)

FILE NO/S:

CA No 146 of 2021
DC No 286 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville – Date of Sentence: 18 June 2021 (Chief Judge Devereaux QC)

DELIVERED ON:

Date of Order: 24 February 2022
Date of Publication of Reasons: 27 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

24 February 2022

JUDGES:

Fraser and Morrison and Mullins JJA

ORDER:

Date of Order: 24 February 2022

Application dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – FAILURE TO EXERCISE DISCRETION – whether the Crown’s statement of facts impermissibly referred to uncharged acts– whether the learned sentencing judge erred by impermissibly taking into account uncharged acts – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced after pleading guilty to 20 counts of violence against his then partner over a period of eight years and on one occasion her son – where the applicant entered pleas of guilty after the trial commenced – where the effect of the sentences was a head sentence of six years imprisonment – whether the sentence imposed falls outside the limits of established ranges from other more or less comparable decisions – whether the sentence was manifestly excessive

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
R v Clarke[2017] QCA 226, cited
R v D [1996] 1 Qd R 363; [1995] QCA 329, followed
R v Getawan[2014] QCA 235, cited
R v Jackson[2011] QCA 103, cited
R v Luxford[2020] QCA 272, cited
R v MDB[2018] QCA 283, cited
R v O’Grady; Ex parte Attorney-General (Qld) (2003) 138 A Crim R 273; [2003] QCA 137, followed
R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited
R v Stable (a pseudonym) (2020) 6 QR 617; [2020] QCA 270, cited
R v Tout[2012] QCA 296, cited

COUNSEL:

J R Hunter QC for the applicant
C W Wallis for the respondent

SOLICITORS:

Rennick Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  For the reasons given by Morrison JA, I joined in the order made on 24 February 2022.

  2. MORRISON JA:  The applicant was sentenced after pleading guilty to 20 counts of violence over a period of eight years, directed towards his then partner (K), and (on one occasion) her son.

  3. Count 1 on the indictment related to the assault on K’s son.  Counts 2 to 22 related to the applicant’s assaults on K on eight separate occasions between 2010 and 2018.  Count 23 arose because when K complained to police in 2018, the…

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Details
AGLC
R v Ccu [2022] QCA 92
Case
[2022] QCA 92
Decision Date

CaseChat Overview and Summary

The case of R v CCU involved an appeal against the sentence imposed by the sentencing judge. The appellant was found guilty of 20 counts of violence against his former partner over an eight-year period, including an incident involving her son. The appellant entered pleas of guilty after the trial had commenced. The primary issue before the court was whether the sentence imposed was manifestly excessive or inadequate. Additionally, the court needed to determine whether the sentencing judge had erred by considering uncharged acts, and if such an error led to a miscarriage of justice.

The court examined the sentencing remarks and the agreed statement of facts to assess if the sentencing judge had indeed restricted the facts to the charged incidents. The court noted that the sentencing judge had clearly delineated the facts relevant to Count 19, which involved the use of a sledgehammer. The court held that the sentencing judge had appropriately confined the facts to the charged incident, thus negating any claims of an improper consideration of uncharged acts. The court also found that the sentence, while severe, did not fall outside the established sentencing ranges for comparable offences. Therefore, the sentence was not deemed manifestly excessive.

Consequently, the court dismissed the application for appeal against the sentence. The reasoning was that the sentencing judge had correctly applied the facts to the charged incidents and the sentence imposed was within the appropriate range for the severity of the crimes committed. No miscarriage of justice was found, and the original sentence was upheld.

Orders

Orders of the court

Date of Order: 24 February 2022

Application dismissed.

Background

Background to the litigation

Thirdly, when the sentencing remarks are read in context it becomes plain that the learned sentencing judge kept Count 19 restricted to the sledgehammer incident. His Honour said:[13][13]AB 58 lines 1-29. Emphasis added; italics in original.“On 16 September 2018, you and the complainant discussed her moving out and your moving to Bali, and where the children would go. Later in the day, there was more discussion about that. The children were getting hungry. The complainant asked you if she could get her wallet from one of the cars to go to the shops. The keys to the car were in a different car, which you unlocked, and she grabbed her wallet. You asked if she was going to take the car that you had paid for to go to the shops. She then said she would walk. You became angry and complained about paying for everything. She said that they would go without dinner and went back inside.This is really all background, but it is background, necessarily, to the events that happened on this day. You told the complainant that she was on your list. This she understood from previous discussions to be a hit list of people you intended to kill. You grabbed a shovel in the backyard and placed it in one of the cars. She was holding onto a pole. You told her that you would smash her head into the pole and told her to get into the car. You were holding a knife at this stage. She walked down the driveway. You told her not to walk out of the driveway. You said:“Do you want me to do it here where everyone can see?”Eventually the two of you sat in the carport in front of CCTV camera outside your shed. The complainant said she knew that her daughter could see from the CCTV footage on her phone. There was discussion about your moving when suddenly you grabbed the complainant and dragged her into the shed. She screamed and was banging on cupboards to alert others to contact the police. She struck a cupboard and believed she lost consciousness. She felt pain to her back and neck and was unable to control her body. Thought she was having a seizure. You stood over her holding a sledgehammer. You brought the sledgehammer down to the cement floor, just to the right of the complainant’s head, leaving a dent in the cement. That threatening action was common assault, count 19.” In light of the uncontradicted Crown’s submissions set out in paragraphs [40] and his Honour’s recognition of the restricted application of the facts in respect of Count 11 (see paragraph [43] above), it is plain that his Honour restricted the facts for Count 19 to the use of the sledgehammer.[14][14]Further support for this conclusion comes from the fact that paragraph [50] of the agreed statement of facts ends with the reference to “having a seizure” – see the 5th last line of the passage set out in paragraph [45] above. Paragraph [51] then commenced the reference to the sledgehammer as Count 19. Though the sentencing transcript runs them together the learned sentencing judge could not have missed the break as he read it out.

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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