R v Coulton - [2010] QCA 331

SUPREME COURT OF QUEENSLAND

CITATION:

R v Coulton [2010] QCA 331

PARTIES:

R
v
COULTON, Leslie James
(applicant)

FILE NO/S:

CA No 156 of 2010
DC No 183 of 2010
DC No 91 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

26 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2010

JUDGES:

Fraser and White JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Grant the application and allow the appeal.1.

Set aside the parole release date fixed in the District Court at Townsville on 18 June 2010 and instead fix the applicant’s parole release date as 15 December 2010.2.

Declare that the nine days served by the applicant in presentence custody between 9 June 2010 and 17 June 2010 is imprisonment already served under the sentence in respect of count 1 in the ex officio indictment.3.

Otherwise confirm the orders made in the District Court at Townsville on 18 June 2010.4.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was convicted on his own plea of guilty of unlawfully using a motor vehicle – where that offence constituted a breach of a six month wholly suspended sentence – where the sentencing judge ordered the applicant to serve the whole of the six month suspended sentence and imposed a cumulative sentence of six months imprisonment for the unlawful use offence – where the sentencing judge fixed a parole release date just over seven and a half months into the effective 12 months sentence – where the applicant applied for leave to appeal against his sentence – where the applicant contended that as the sentencing judge did not give reasons for fixing a parole release date past the halfway point of the head sentence the sentencing discretion miscarried – whether the sentencing discretion miscarried – whether the Penalties and Sentences Act 1992 (Qld) empowers a sentencing judge to fix a parole release date during the period of an activated suspended sentence which forms part of a combined sentence

Penalties and Sentences Act 1992 (Qld), s 159A

R v Anderson[2010] QCA 158, applied
R v Gray [2010] QCA 161, applied
R v Lui[2009] QCA 366, cited
R v Newman [2008] QCA 147, applied
R v Norden [2009] 2 Qd R 455; [2009] QCA 42, applied

COUNSEL:

The applicant appeared on his own behalf
B G Campbell for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

[1] FRASER JA: On 18 June 2010 the applicant was convicted on his plea of guilty of unlawfully using a motor vehicle on 9 June 2010. That offence constituted a breach of a wholly suspended sentence of six months imprisonment, with an operational period of three years,…

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 Coulton

Details

AGLC: R v Coulton [2010] QCA 331
Case: [2010] QCA 331
Decision Date: 26 November 2010

CaseChat Overview and Summary

In the case of R v Coulton, the applicant was convicted on his own plea of guilty for unlawfully using a motor vehicle. This offence was a breach of a previously imposed six-month wholly suspended sentence. The sentencing judge activated the suspended sentence and imposed a cumulative sentence of six months imprisonment for the unlawful use offence. The judge set a parole release date more than seven and a half months into the effective 12-month sentence. The applicant sought leave to appeal against his sentence, arguing that the sentencing judge did not provide reasons for setting a parole release date beyond the halfway point of the head sentence, indicating a miscarriage of sentencing discretion. The key legal issues were whether the sentencing discretion had indeed miscarried and whether the Penalties and Sentences Act 1992 (Qld) allows a sentencing judge to set a parole release date during the period of an activated suspended sentence that forms part of a combined sentence.

The court found that the sentencing judge had indeed erred by not providing reasons for setting the parole release date beyond the halfway point of the head sentence, resulting in a miscarriage of the sentencing discretion. The court held that the sentencing judge must provide reasons to justify a parole release date beyond the halfway point of the head sentence. Additionally, the court determined that the Penalties and Sentences Act 1992 (Qld) does not empower a sentencing judge to set a parole release date during the period of an activated suspended sentence that forms part of a combined sentence. Therefore, the court granted the application and allowed the appeal, setting aside the parole release date and fixing a new one. The court also declared that the nine days served by the applicant in presentence custody would count as imprisonment already served under the sentence.

Orders

Orders of the court

Grant the application and allow the appeal.1.

Set aside the parole release date fixed in the District Court at Townsville on 18 June 2010 and instead fix the applicant’s parole release date as 15 December 2010.2.

Declare that the nine days served by the applicant in presentence custody between 9 June 2010 and 17 June 2010 is imprisonment already served under the sentence in respect of count 1 in the ex officio indictment.3.

Otherwise confirm the orders made in the District Court at Townsville on 18 June 2010.4.

Background

Background to the litigation

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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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CITATION:	R v Coulton [2010] QCA 331
PARTIES:	R v COULTON, Leslie James (applicant)
FILE NO/S:	CA No 156 of 2010 DC No 183 of 2010 DC No 91 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	26 November 2010
DELIVERED AT:	Brisbane
HEARING DATE:	23 November 2010
JUDGES:	Fraser and White JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Grant the application and allow the appeal.1. Set aside the parole release date fixed in the District Court at Townsville on 18 June 2010 and instead fix the applicant’s parole release date as 15 December 2010.2. Declare that the nine days served by the applicant in presentence custody between 9 June 2010 and 17 June 2010 is imprisonment already served under the sentence in respect of count 1 in the ex officio indictment.3. Otherwise confirm the orders made in the District Court at Townsville on 18 June 2010.4.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was convicted on his own plea of guilty of unlawfully using a motor vehicle – where that offence constituted a breach of a six month wholly suspended sentence – where the sentencing judge ordered the applicant to serve the whole of the six month suspended sentence and imposed a cumulative sentence of six months imprisonment for the unlawful use offence – where the sentencing judge fixed a parole release date just over seven and a half months into the effective 12 months sentence – where the applicant applied for leave to appeal against his sentence – where the applicant contended that as the sentencing judge did not give reasons for fixing a parole release date past the halfway point of the head sentence the sentencing discretion miscarried – whether the sentencing discretion miscarried – whether the Penalties and Sentences Act 1992 (Qld) empowers a sentencing judge to fix a parole release date during the period of an activated suspended sentence which forms part of a combined sentence Penalties and Sentences Act 1992 (Qld), s 159A R v Anderson[2010] QCA 158, applied R v Gray [2010] QCA 161, applied R v Lui[2009] QCA 366, cited R v Newman [2008] QCA 147, applied R v Norden [2009] 2 Qd R 455; [2009] QCA 42, applied
COUNSEL:	The applicant appeared on his own behalf B G Campbell for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent