R v. Coutts - [2008] QCA 380

SUPREME COURT OF QUEENSLAND

CITATION:

R v Coutts [2008] QCA 380

PARTIES:

R
v
COUTTS, Chloe Ann
(applicant/appellant)

FILE NO/S:

CA No 204 of 2008
DC No 154 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

4 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

12 November 2008

JUDGES:

McMurdo P, Holmes JA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Application for leave to appeal against sentence granted.1.

Appeal allowed.2.

The sentence imposed at first instance is set aside and instead, upon Chloe Ann Coutts' legal representatives' compliance with s 95 Penalties and Sentences Act 1992 (Qld) and upon her agreement to the following order and to her compliance with it, it is ordered that Chloe Ann Coutts be sentenced to two years and three months probation, subject to the general requirements set out in s 93 Penalties and Sentences Act.3.

A conviction is recorded.4.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – applicant pleaded guilty in July 2008 to an assault occasioning bodily harm committed in 2006 and sentenced to three months imprisonment followed by parole – applicant sentenced in April 2008 for another assault occasioning bodily harm to 18 months probation with community service and restitution – applicant sentenced in June 2008 for a public nuisance offence committed in May 2008 – this offence breached the probation order imposed in April 2008 – sentencing judge applied totality principle in considering the appropriate sentence if applicant had been sentenced for both assaults in April 2008 – sentencing judge commented that non-custodial sentence was not open because of subsequent breach of probation order by the public nuisance offence – whether sentencing judge erred in applying the totality principle – Court of Appeal re-sentenced applicant to two years and three months probation with a conviction recorded

Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s 9(4)

Clements (1993) 68 A Crim R 167; [1993] QCA 245, considered
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, applied
R v Kite[1999] QCA 162, compared

COUNSEL:

M A Green for the applicant/appellant
M J Copley for the respondent

SOLICITORS:

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

McMURDO P: The applicant, Chloe Ann Coutts, pleaded guilty in the Toowoomba District Court on 28 July 2008 to assault occasioning bodily harm on 16 September 2006. She was sentenced to three months imprisonment with a parole release date set at the end of that period. She applies for leave to appeal against her sentence contending that it was manifestly excessive. She also contends that the judge erred in failing to correctly apply the totality principle.

The sentencing proceeding

Ms Coutts was 19 years old at the time of the offence and 21 at sentence.…

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. Coutts

Details

AGLC: R v Coutts [2008] QCA 380
Case: [2008] QCA 380
Decision Date: 4 December 2008

CaseChat Overview and Summary

In the case of R v Coutts, the appellant was convicted of multiple criminal offences and subsequently appealed the sentence imposed by the lower court. The appellant, Chloe Ann Coutts, had pleaded guilty to an assault occasioning bodily harm in July 2008, for which she was sentenced to three months imprisonment followed by parole. For another assault occasioning bodily harm committed in 2006, she was sentenced in April 2008 to 18 months probation with community service and restitution. A further conviction for a public nuisance offence in May 2008 breached her probation order from the April 2008 sentence. The sentencing judge applied the totality principle when considering the appropriate sentence for the two assaults, taking into account the public nuisance offence, which resulted in a comment that a non-custodial sentence was not possible. The appellant challenged the application of the totality principle and the appropriateness of the sentence.

The legal issues before the Court of Appeal centred on whether the sentencing judge erred in applying the totality principle. The Court considered whether the sentencing judge had correctly assessed the totality of the appellant's offending and whether the sentence imposed was appropriate. The Court also needed to determine whether the sentencing judge had erred by considering the subsequent breach of the probation order in imposing the sentence.

The Court of Appeal found that the sentencing judge had indeed erred in applying the totality principle. The Court held that the sentencing judge should have considered the sentences for the two assaults separately before applying the totality principle. Furthermore, the Court found that the sentencing judge should not have considered the subsequent breach of the probation order in imposing the sentence. As a result, the Court set aside the sentence imposed at first instance and re-sentenced the appellant to two years and three months probation with a conviction recorded. The Court of Appeal's decision was based on the principle that the sentencing judge must consider the appropriate punishment for each offence individually before applying the totality principle and that the breach of probation should not have been a factor in the sentencing decision. The Court granted the appellant leave to appeal and allowed the appeal, subsequently ordering the new sentence and recording the conviction.

Orders

Orders of the court

Application for leave to appeal against sentence granted.1.

Appeal allowed.2.

The sentence imposed at first instance is set aside and instead, upon Chloe Ann Coutts' legal representatives' compliance with s 95 Penalties and Sentences Act 1992 (Qld) and upon her agreement to the following order and to her compliance with it, it is ordered that Chloe Ann Coutts be sentenced to two years and three months probation, subject to the general requirements set out in s 93 Penalties and Sentences Act.3.

A conviction is recorded.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 Coutts [2008] QCA 380
PARTIES:	R v COUTTS, Chloe Ann (applicant/appellant)
FILE NO/S:	CA No 204 of 2008 DC No 154 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	4 December 2008
DELIVERED AT:	Brisbane
HEARING DATE:	12 November 2008
JUDGES:	McMurdo P, Holmes JA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Application for leave to appeal against sentence granted.1. Appeal allowed.2. The sentence imposed at first instance is set aside and instead, upon Chloe Ann Coutts' legal representatives' compliance with s 95 Penalties and Sentences Act 1992 (Qld) and upon her agreement to the following order and to her compliance with it, it is ordered that Chloe Ann Coutts be sentenced to two years and three months probation, subject to the general requirements set out in s 93 Penalties and Sentences Act.3. A conviction is recorded.4.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – applicant pleaded guilty in July 2008 to an assault occasioning bodily harm committed in 2006 and sentenced to three months imprisonment followed by parole – applicant sentenced in April 2008 for another assault occasioning bodily harm to 18 months probation with community service and restitution – applicant sentenced in June 2008 for a public nuisance offence committed in May 2008 – this offence breached the probation order imposed in April 2008 – sentencing judge applied totality principle in considering the appropriate sentence if applicant had been sentenced for both assaults in April 2008 – sentencing judge commented that non-custodial sentence was not open because of subsequent breach of probation order by the public nuisance offence – whether sentencing judge erred in applying the totality principle – Court of Appeal re-sentenced applicant to two years and three months probation with a conviction recorded Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s 9(4) Clements (1993) 68 A Crim R 167; [1993] QCA 245, considered Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, applied R v Kite[1999] QCA 162, compared
COUNSEL:	M A Green for the applicant/appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent