SUPREME COURT OF QUEENSLAND
CITATION:
R v Collard [2019] QCA 105
PARTIES:
R
v
COLLARD, Clayton Shaun
(applicant)FILE NO/S:
CA No 146 of 2018
DC No 161 of 2018
DC No 162 of 2018DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Maroochydore – Date of Sentence: 18 May 2018 (Long SC DCJ)
DELIVERED ON:
31 May 2019
DELIVERED AT:
Brisbane
HEARING DATE:
5 March 2019
JUDGES:
Gotterson and McMurdo JJA and Bradley J
ORDER:
The application is refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his own guilty pleas of eight indictable offences and 11 summary offences committed in a single night, and 10 further summary offences committed in the preceding two months – where the learned primary judge directed that terms of imprisonment for two of the indictable offences be served cumulatively upon the sentences imposed on all other counts and charges – where the effect of the accumulation was the imposition of an aggregate sentence of six years and nine months imprisonment, with parole eligibility after serving two years and three months – whether it was appropriate to impose cumulative sentences in circumstances where all the indictable offences were committed in the same “spree” of offending – whether the sentence imposed was manifestly excessive
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant’s counsel at first instance submitted that the applicant’s offending conduct may have been at least partly caused by the applicant’s schizophrenia – where it is alleged that the learned primary judge failed to apply settled principles about the relevance of an offender’s mental illness in sentencing the applicant – whether the learned primary judge erred in the consideration given to the applicant’s diagnosis of schizophrenia in sentencing the applicant
R v Ahmetaj (2015) 256 A Crim R 203; [2015] QCA 248, cited
R v Hawdon[2011] QCA 219, considered
R v Hyatt [2011] QCA 55, considered
R v Macklin[2016] QCA 244, considered
R v Miller [2015] QCA 94, considered
R v Verdins (2007) 16 VR 269; [2007] VSCA 102, cited
R v Yarwood (2011) 220 A Crim R 497; [2011] QCA 367, citedCOUNSEL:
S Robb for the applicant
C W Wallis for the respondentSOLICITORS:
Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent
GOTTERSON JA: I agree with the order proposed by Bradley J and with the reasons given by his Honour.
McMURDO JA: The facts of the applicant’s offending are detailed in the judgment of Bradley J, and need not be repeated here. I have reached a different view about the disposition of this application for leave to appeal.
In R v Verdins,[1] the Victorian Court of Appeal (Maxwell P, Buchanan and Vincent…
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- R v Collard [2019] QCA 105
- Case
- [2019] QCA 105
- Decision Date
CaseChat Overview and Summary
The legal issues that the Court of Appeal had to decide were whether it was appropriate to impose cumulative sentences in circumstances where all the indictable offences were committed in the same "spree" of offending and whether the sentence imposed was manifestly excessive. The Court also needed to consider whether the primary judge erred in the consideration given to the applicant's diagnosis of schizophrenia in sentencing him.
The Court of Appeal found that the primary judge had not erred in the consideration given to the applicant's diagnosis of schizophrenia in sentencing him. There was little material before the sentencing court regarding the nature and severity of the symptoms of the applicant's condition, which made it difficult to assess the impact of his schizophrenia on his offending conduct. The Court concluded that the sentence was not manifestly excessive, having regard to the gravity of the applicant's offending, compared to the worst possible offending that attracts a life imprisonment and compared to the offending in the referenced decisions, and to the applicant's particular relevant circumstances.
In conclusion, the Court of Appeal refused the application for leave to appeal. The Court found that the primary judge had not acted on the wrong principle in sentencing the applicant and that the sentence was not manifestly excessive. The Court held that the appropriate sentence was one of six years and nine months imprisonment, with parole eligibility after serving two years and three months.
Orders
Orders of the court
The application is refused.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Having regard to the gravity of the applicant’s offending, compared to the worst possible offending that attracts a life imprisonment and compared to the offending in the referenced decisions, and to the applicant’s particular relevant circumstances, I am not driven to the conclusion that the sentence was manifestly excessive.Proposed ground 2 – consideration of the applicant’s mental illness The second proposed ground of appeal is that in sentencing the applicant, the learned primary judge erred in his consideration of the applicant’s mental illness and in emphasising the relevance of deterrence rather than finding it mitigated. When there is evidence before the Court that an offender was affected by a mental disorder or impairment at the time of the offending, it may reduce moral culpability so as to affect the punishment that is just in all the circumstances; denunciation of the offending conduct may be a less relevant sentencing objective; and general deterrence may be moderated or even eliminated as a sentencing consideration depending upon the nature and severity of the offender’s symptoms. The effects of mental health conditions at the time of sentence may also have a bearing on the sentence that would be just, and the extent to which specific and general deterrence can be achieved.[7][7]This is a very brief summary of the propositions in R v Tsiaras [1996] 1 VR 398 at 400, R v Verdins (2007) 16 VR 269 at 271 [5], 276 [32] and R v Goodger [2009] QCA 377 at [21], adopted in R v Yarwood (2011) 220 A Crim R 497 at 506-507 [23]-[26]. As his counsel Ms Robb put it frankly, the difficulty for the applicant is that there was very little before the sentencing court, or for that matter this Court, with respect to the nature and severity of the symptoms of the applicant’s condition.Material before the learned primary judge on the applicant’s mental health At the sentencing hearing, the learned primary judge was told by the applicant’s then counsel that the applicant was diagnosed with schizophrenia in his mid-twenties. The learned primary judge was told the applicant has paranoia, hears voices, and has visual hallucinations and suicidal ideations. These are accepted symptoms of psychosis associated with schizophrenia. Other symptoms, such as muddled, disrupted thought and speech, movement disorders, and unusual, inappropriate or extreme actions, were not raised before the sentencing court. As his Honour noted, the applicant had no criminal history before October 2010, when at age 27 he was fined with no conviction recorded for disorderly conduct. His next offence was public nuisance in June 2015, when he was 32. In 2016 and 2017, he committed a number of offences including public nuisance, assault or obstruct a police officer, failing to properly dispose of a needle and syringe, stealing, and unlawful possession of a controlled drug. This period was also marked by a series of domestic violence contraventions, including unlawful stalking, followed by a breach of the probation order imposed for the unlawful stalking and contraventions of domestic violence orders on five separate occasions, one an aggravated offence. These appear to follow the end of his relationship with Ms D.