R v Coutts

Case [2016] QCA 206

SUPREME COURT OF QUEENSLAND

CITATION:

R v Coutts [2016] QCA 206

PARTIES:

R
v
COUTTS, Lynda-Ann Nardia
(applicant)

FILE NO/S:

CA No 111 of 2016
DC No 348 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore – Date of Sentence: 21 April 2016

DELIVERED ON:

23 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

5 August 2016

JUDGES:

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

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE –  where the applicant was convicted on her own plea of one count of unlawful stalking with violence – where the applicant  was sentenced to 18 months imprisonment with parole release after serving six months imprisonment – where the applicant submitted that the sentencing judge failed to take proper account of the applicant’s plea of guilty and remorse, her mental state at the time of the offending and considerations of rehabilitation – whether the exercise of the sentencing discretion miscarried

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on her own plea of one count of unlawful stalking with violence – where the applicant  was sentenced to 18 months imprisonment with parole release after serving six months imprisonment – where the applicant contended that requiring the applicant to serve six months in actual custody was manifestly excessive – where the applicant submitted that the failure to take account of the stated factors constituted an error that resulted in a manifestly excessive sentence – whether the sentence was manifestly excessive

Criminal Code (Qld), s 359F
Penalties and Sentences Act 1992 (Qld), s 9(2), s 13(1), s 13(3), s 13(4)

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, cited
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, cited
Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited
R v Baker[2011] QCA 33, cited
R v Buckman[2016] QCA 176, cited
R v Chivers [1993] 1 Qd R 432, cited
R v Harman [1989] 1 Qd R 414, cited
R v Huff[2012] QCA 138, considered
R v Macdonald[2008] QCA 384, considered
R v Major; Ex parte Attorney-General (Qld) [2012] 1 Qd R 465; [2011] QCA 210, cited
R v Pham (2015) 90 ALJR 13; [2015] HCA 39, cited
R v Tout[2012] QCA 296, cited
R v Walton[2006] QCA 522, considered
R v Woods[2004] QCA 204

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Details
AGLC
R v Coutts [2016] QCA 206
Case
[2016] QCA 206
Decision Date

CaseChat Overview and Summary

The applicant, who pleaded guilty to one count of unlawful stalking with violence, was sentenced to 18 months imprisonment with parole release after serving six months. The applicant appealed against the sentence, contending that the sentencing judge failed to properly consider the applicant's plea of guilty and remorse, her mental state at the time of the offending, and considerations of rehabilitation. The applicant argued that these omissions led to a sentence that was manifestly excessive.

The court was required to determine whether the sentencing judge's failure to consider the specified factors constituted an error that resulted in a manifestly excessive sentence. The court also needed to decide if the exercise of the sentencing discretion had miscarried due to the judge acting on the wrong principle.

The court found that the sentence did not miscarry due to the judge acting on the wrong principle and that the applicant had not demonstrated that the failure to take into account the specified factors resulted in a manifestly excessive sentence. The court held that the sentence was appropriate given the seriousness of the offending and the need for deterrence and denunciation. The applicant's submission that requiring her to serve six months in actual custody was manifestly excessive was rejected.

The application for leave to appeal against sentence is refused.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

Background

Background to the litigation

The applicant contended that there was error of the kind articulated in House v The King, in that the sentencing judge did not take into proper account the above mentioned considerations with the result that the sentence imposed was manifestly excessive in that it required the applicant to serve six months in custody prior to release on parole. The ground alleging that the sentence was manifestly excessive was thus contingent on demonstrating that there was error in one or more of the matters that formed ground 2.Facts The sentence proceeded on an agreed schedule of facts. The applicant was 49 years old at the time of the offending and 50 at the time of sentence. The offending occurred between 12 July 2014 and 20 February 2015. The complainant was aged 71-72 years at the time of the offence and was the neighbour of the applicant. The complainant’s husband suffered from Alzheimer’s disease and was moved into a nursing home during the period of the offending. The complainant continued to live, alone, in her home of 35 years. Prior to the June-July holidays in 2014, the complainant and the applicant appear to have got along quite well. During those holidays, the complainant heard banging doors coming from the applicant’s house and saw the applicant’s son crying. Later that day, the complainant encountered the applicant’s daughter out the front of her house and they discussed the applicant’s son. Thereafter, the applicant telephoned the complainant and said to “mind your own business it’s my son I’m going to get rid of you as a neighbour”. Following that, the applicant would yell abuse at the complainant whenever she saw her outside her house. In the six month period between 20 August 2014 and 19 February 2015, there were 18 occasions particularised, including threats to the complainant such as:·“dead prey” (15 January 2015);·“fucking cunt, fucking cunt, die you bitch” (2 February 2015);·“I’d love you to have a go cause it would give me an excuse just to [indistinct] your fucking head in” (7 February 2015);·“I’ll follow you home and I’ll find out where you live and I’ll start fucking attacking you guys too” (7 February 2015, said to the complainant’s daughter);·“I’m going to kill you fucken (sic) die” (7 February 2015); and·“I haven’t torched her house yet but that will be next [indistinct] Bikie friends like this, put your name on the list you fuckwit” (19 February 2015). From 7 February 2015, the complainant recorded the applicant’s abuse and threats. On 18 February 2015, the applicant sent the following text to her sister-in-law:“U wanna fuck with me don’t ya so did old judy (sic) next door now shes to (sic) scared to come home cause I got to her they havent (sic) been here for days.” When the applicant was arrested by police on 8 March 2015, she denied having spoken to the complainant in the previous six week period. The complainant’s Victim Impact Statement, tendered at sentence, revealed that the applicant’s conduct caused the complainant significant distress and she had become afraid to leave her house. The complainant had lost the joy she previously found in gardening and found it difficult to be positive about life.The submissions at sentence

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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