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R v Coleman

R v Coleman

Case [2015] QCA 176 25 September 2015

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Coleman [2015] QCA 176

PARTIES:

R
v
COLEMAN, William Alfred
(applicant)

FILE NO/S:

CA No 79 of 2015
DC No 121 of 2015
DC No 559 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

25 September 2015

DELIVERED AT:

Brisbane

HEARING DATE:

20 August 2015

JUDGE:

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

ORDERS:

1.     Application for leave is granted.

2.     Appeal is allowed.

3.     Sentence imposed on 22 April 2015 in respect of Count 1 on Indictment 121 of 2015 is set aside.

4.     In respect of Count 1 on Indictment 121 of 2015, order that the applicant be imprisoned for a period of three and a half years.

5.     Direct that the term of three and a half years imprisonment is to be served cumulatively upon the sentence imposed on 18 October 2011.

6.     Order that the date the applicant is eligible for parole be fixed at 16 September 2016.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of armed robbery – where the applicant committed the offence whilst on parole – where the applicant was still serving the head sentence of six years imprisonment for his previous conviction of armed robbery – where the applicant was sentenced to three years and six months imprisonment to be served cumulatively upon the sentence of six years imprisonment already being served – whether the learned sentencing judge failed to take into account the mitigating factors at the sentencing hearing – whether the cumulative sentence should have been further moderated – whether the parole eligibility date fixed at the two-thirds mark of the aggregate sentence was manifestly excessive – whether the learned sentencing judge erred in calculating the full time release date and in fixing the parole eligibility date – whether the cumulative sentence imposed by the learned sentencing judge was manifestly excessive

Corrective Services Act 2006 (Qld), s 184
Penalties and Sentences Act 1992 (Qld), s 9, s 156A, s 160C, Sch 1

Director of Public Prosecutions v Grabovac [1998] 1 VR 664; (1997) 92 A Crim R 258, considered
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, considered
R v Apps[2008] QCA 326, distinguished
R v Beattie; Ex parte Attorney-General (Qld)[2014] QCA 206, considered
R v Brown[2000] QCA 402, considered
R v Kendrick[2015] QCA 27, followed
R v Kengike[2013] QCA 40, considered
R v Maxfield [2002] 1 Qd R 417; [2000] QCA 320, distinguished
R v Shillingsworth [2002] 1 Qd R 527; [2001] QCA 172, followed

COUNSEL:

C R Smith for the applicant
M T Whitbread for the respondent

SOLICITORS:

Legal Aid Queensland for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Coleman

Details

AGLC: R v Coleman [2015] QCA 176
Case: [2015] QCA 176
Decision Date: 25 September 2015

CaseChat Overview and Summary

The appellant, Coleman, pleaded guilty to armed robbery while on parole for a previous armed robbery conviction. The appellant was still serving a six-year sentence for the prior offence when sentenced to an additional three years and six months for the current offence, to be served cumulatively. The appellant appealed against the sentence, arguing that it was manifestly excessive, that the sentencing judge failed to consider mitigating factors, and that the parole eligibility date was excessively early. The Court of Appeal reviewed the legal issues concerning the imposition of the cumulative sentence, the consideration of mitigating factors, and the appropriateness of the parole eligibility date.

The legal issues before the Court of Appeal included whether the cumulative sentence imposed was manifestly excessive, whether the sentencing judge adequately considered mitigating factors, and whether the parole eligibility date was set too early. The Court considered whether the original sentence should be modified due to these concerns. The Court had to determine if the sentence imposed was disproportionate, whether the mitigating factors warranted a more lenient sentence, and if the parole eligibility date was appropriately calculated.

The Court of Appeal held that the sentence was manifestly excessive due to the failure to adequately consider mitigating factors and the inappropriateness of the parole eligibility date. The Court found that the sentencing judge did not properly assess the mitigating factors, and that the parole eligibility date was set too early. The Court concluded that the cumulative sentence should be reduced and the parole eligibility date should be adjusted accordingly. The Court allowed the appeal, set aside the original sentence, and imposed a new sentence of three and a half years to be served cumulatively with the existing sentence. The parole eligibility date was also adjusted to a later date.

The Court of Appeal granted the application for leave to appeal and allowed the appeal. The original sentence of three years and six months was set aside, and a new sentence of three and a half years was imposed, to be served cumulatively with the existing sentence. The date for parole eligibility was fixed at a later date, reflecting the Court's findings on the appropriateness of the original sentence and parole eligibility date.

Orders

Orders of the court

1. Application for leave is granted.

2. Appeal is allowed.

3. Sentence imposed on 22 April 2015 in respect of Count 1 on Indictment 121 of 2015 is set aside.

4. In respect of Count 1 on Indictment 121 of 2015, order that the applicant be imprisoned for a period of three and a half years.

5. Direct that the term of three and a half years imprisonment is to be served cumulatively upon the sentence imposed on 18 October 2011.

6. Order that the date the applicant is eligible for parole be fixed at 16 September 2016.

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.

Citations

AGLC Citation

R v Coleman [2015] QCA 176

Most Recent Citation

R v Cole [2016] QCA 307

Cases citing this decision · 4 of 4 shown

LPN v Queensland Police Service
[2021] QDC 276 Para 12

…practice.”[15] [13] The Queen v Kendrick [2015] QCA 27. [14] The Queen v Kendrick [2015] QCA 27 at [31]-[41]. [15] See for example, R v Coleman [2015] QCA 176 Ann Lyons J (with whom Fraser JA and Gotterson JA agreed) had regard to the whole of the existing sentence (not just the remainder) and the cumulative sent…
R v Bahcehan
[2019] QCA 278 Para 1

…ce for the current offending would be to moderate the head sentence to three and a half to four years’ imprisonment. [33](1988) 166 CLR 59. [34][2015] QCA 176 at [37].…
R v Kussrow
[2018] QCA 195 Para 24

…cumulative sentence in circumstances where a significant period of time will in fact be served in relation to the first set of offences”.[18] [17][2015] QCA 176. [18]At [37] (Fraser and Gotterson JJA agreeing).…
R v Cole
[2016] QCA 307 Para 25

…support of the sentence, the respondent relied on R v Brown [26]; R v Coleman [27]; and R v Kengike [28]. [25][2001] QCA 472. [26][2000] QCA 402. [27][2015] QCA 176. [28][2013] QCA 40. Was the sentence in accordance with s 156A of the PSA?…

View all 4 citing cases →

Cases cited in this decision · 9 of 9 shown

R v Kendrick
[2015] QCA 27 Para 13

…assistance in terms of the principles of totality which the learned sentencing judge was required to consider in relation to the sentence imposed. [5][2015] QCA 27.…
R v Beattie; Ex parte Attorney-General (Qld)
[2014] QCA 206 Para 7

…onal issue of the need to avoid a ‘crushing’ sentence. In that decision, the Court noted the following: [15](1988) 166 CLR 59; [1988] HCA 70. [16][2014] QCA 206. [17][2015] QCA 27. “[51]It is evident that the sentencing judge in the present case reduced his start point of six years to four years to balance the se…
R v Kengike
[2013] QCA 40 Para 11

…n to threaten the victim. The Court of Appeal did not interfere with the sentence of six years imprisonment. [1][2002] 1 Qd R 417; [2000] QCA 320. [2][2013] QCA 40. [3][2000] QCA 402. [4][2008] QCA 326.…
R v Apps
[2008] QCA 326 Para 11

…f Appeal did not interfere with the sentence of six years imprisonment. [1][2002] 1 Qd R 417; [2000] QCA 320. [2][2013] QCA 40. [3][2000] QCA 402. [4][2008] QCA 326.…
R v Shillingsworth
[2001] QCA 172 Para 6

…tencing options and their potential effect. As noted in Bojovic , sentencing is a practical exercise.” (citations omitted) [14][2002] 1 Qd R 527; [2001] QCA 172, [3].…
R v Brown
[2000] QCA 402 Para 11

…victim. The Court of Appeal did not interfere with the sentence of six years imprisonment. [1][2002] 1 Qd R 417; [2000] QCA 320. [2][2013] QCA 40. [3][2000] QCA 402. [4][2008] QCA 326.…
R v Maxfield
[2000] QCA 320 Para 11

…e and used a toy gun to threaten the victim. The Court of Appeal did not interfere with the sentence of six years imprisonment. [1][2002] 1 Qd R 417; [2000] QCA 320. [2][2013] QCA 40. [3][2000] QCA 402. [4][2008] QCA 326.…
Pearce v The Queen
[1998] HCA 57 Para 22

…y upon the 2011 sentence. That will give an effective end date of all sentences of 17 April 2021. That is about six years away.”[9] [8][1998] 1 VR 664, 680. [9]ARB 22 ll 7-18.…
Mill v The Queen
[1988] HCA 70

…, s 9, s 156A, s 160C, Sch 1 Director of Public Prosecutions v Grabovac [1998] 1 VR 664; (1997) 92 A Crim R 258, considered Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, considered R v Apps [2008] QCA 326, distinguished R v Beattie; Ex parte Attorney-General (Qld) [2014] QCA 206, considered R v Brown [2000] QCA 402,…

Legislation cited in this decision · 3

Corrective Services Act 2006 (Qld)
184, 184(1)(d) 3 mentions (from Para 4)
Penalties and Sentences Act 1992 (Qld)
9 2 mentions (from Para 21)
Corrective Services Act 2000 (Qld)
1 mention (from Para 4)

CITATION:	R v Coleman [2015] QCA 176
PARTIES:	R v COLEMAN, William Alfred (applicant)
FILE NO/S:	CA No 79 of 2015 DC No 121 of 2015 DC No 559 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	25 September 2015
DELIVERED AT:	Brisbane
HEARING DATE:	20 August 2015
JUDGE:	Fraser and Gotterson JJA and Ann Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave is granted. 2. Appeal is allowed. 3. Sentence imposed on 22 April 2015 in respect of Count 1 on Indictment 121 of 2015 is set aside. 4. In respect of Count 1 on Indictment 121 of 2015, order that the applicant be imprisoned for a period of three and a half years. 5. Direct that the term of three and a half years imprisonment is to be served cumulatively upon the sentence imposed on 18 October 2011. 6. Order that the date the applicant is eligible for parole be fixed at 16 September 2016.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of armed robbery – where the applicant committed the offence whilst on parole – where the applicant was still serving the head sentence of six years imprisonment for his previous conviction of armed robbery – where the applicant was sentenced to three years and six months imprisonment to be served cumulatively upon the sentence of six years imprisonment already being served – whether the learned sentencing judge failed to take into account the mitigating factors at the sentencing hearing – whether the cumulative sentence should have been further moderated – whether the parole eligibility date fixed at the two-thirds mark of the aggregate sentence was manifestly excessive – whether the learned sentencing judge erred in calculating the full time release date and in fixing the parole eligibility date – whether the cumulative sentence imposed by the learned sentencing judge was manifestly excessive Corrective Services Act 2006 (Qld), s 184 Penalties and Sentences Act 1992 (Qld), s 9, s 156A, s 160C, Sch 1 Director of Public Prosecutions v Grabovac [1998] 1 VR 664; (1997) 92 A Crim R 258, considered Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, considered R v Apps[2008] QCA 326, distinguished R v Beattie; Ex parte Attorney-General (Qld)[2014] QCA 206, considered R v Brown[2000] QCA 402, considered R v Kendrick[2015] QCA 27, followed R v Kengike[2013] QCA 40, considered R v Maxfield [2002] 1 Qd R 417; [2000] QCA 320, distinguished R v Shillingsworth [2002] 1 Qd R 527; [2001] QCA 172, followed
COUNSEL:	C R Smith for the applicant M T Whitbread for the respondent
SOLICITORS:	Legal Aid Queensland for…