R v Collard

Case [2019] QCA 105


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 2018

DIVISION:

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, cited

COUNSEL:

S Robb for the applicant
C W Wallis for the respondent

SOLICITORS:

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

  1. GOTTERSON JA:  I agree with the order proposed by Bradley J and with the reasons given by his Honour.

  2. 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.

  3. In R v Verdins,[1] the Victorian Court of Appeal (Maxwell P, Buchanan and Vincent…

Continue reading R v Collard

Sign in free to access the full text

Details
AGLC
R v Collard [2019] QCA 105
Case
[2019] QCA 105
Decision Date

CaseChat Overview and Summary

The case of R v Collard was heard in the Court of Appeal, where the applicant sought to appeal against his sentence. The applicant had been convicted on his own guilty pleas of eight indictable offences and 11 summary offences committed in a single night, as well as 10 further summary offences committed in the preceding two months. The 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, resulting in an aggregate sentence of six years and nine months imprisonment, with parole eligibility after serving two years and three months. The applicant argued that the sentence was manifestly excessive and that the primary judge had acted on the wrong principle in failing to adequately consider his schizophrenia in sentencing.

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

Full text does not contain this section.

Decision

Reasons for decision

In the circumstances, I do not find that the learned primary judge erred in the consideration given to the applicant’s diagnosis of schizophrenia in sentencing the applicant.Conclusion It follows that I would refuse the application for leave to appeal.

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.