R v Crowden - [2023] QCA 187

SUPREME COURT OF QUEENSLAND

CITATION:

R v Crowden [2023] QCA 187

PARTIES:

R
v
CROWDEN, Ian Ronald
(applicant)

FILE NO/S:

CA No 119 of 2022
SC No 492 of 2022
SC No 483 of 2022
SC No 988 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 17 May 2022 (Boddice J)

DELIVERED ON:

15 September 2023

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2023

JUDGES:

Bond and Flanagan JJA and Cooper J

ORDER:

Application for leave to appeal against sentence be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to 14 counts contained in three indictments – where the applicant was sentenced to a total cumulative sentence of 11 years imprisonment – where the learned sentencing judge structured the sentence by imposing a sentence of five years imprisonment for the trafficking count on indictment 483/22, and a cumulative global head sentence of six years imprisonment for the two most serious offences of violence on indictments 492/22 and 988/21 – where the applicant was convicted but not further punished for Count 1 of indictment 483/22 – where varying sentences of imprisonment were imposed for the balance of the counts of indictments 492/22 and 988/21 to be served concurrently with the global head sentence – where the applicant does not challenge the sentences imposed for indictments 492/22 and 988/21 – where the sole ground of appeal is that the sentence of five years imposed for Count 2 of indictment 483/22 was manifestly excessive – where the sentencing judge considered that the applicant’s criminality viewed globally could not be met by a sentence of 10 years imprisonment – whether the sentence imposed for Count 2 of indictment 483/22 was manifestly excessive

Corrective Services Act 2006 (Qld), s 185

R v Blumke[2015] QCA 264, cited
R v Goodwin; Ex parte Attorney-General(Qld) (2014) 247 A Crim R 582; [2014] QCA 345, followed
R v Wilson[2021] QCA 115, cited
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, followed

COUNSEL:

M J Copley KC for the applicant
S L Dennis for the respondent

SOLICITORS:

Gatenby Criminal Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: The applicant seeks leave to appeal against sentence. On 17 May 2020, following his pleas of guilty, the applicant was sentenced in relation to 14 counts contained in three indictments. On indictment 988/21, he was sentenced on one count of assault occasioning bodily harm in company, one count of assault occasioning bodily harm while armed, two counts of burglary and stealing, one count of extortion, one count of assault occasioning bodily harm while armed in company, and one count of stealing. On indictment 492/22, he was sentenced on one count of participating in a criminal organisation and recruiting persons to become participants in the…

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 Crowden

Details

AGLC: R v Crowden [2023] QCA 187
Case: [2023] QCA 187
Decision Date: 15 September 2023

CaseChat Overview and Summary

In the case of R v Crowden, the applicant appealed against the sentence imposed by the sentencing judge. The applicant had pleaded guilty to 14 counts across three indictments and was sentenced to a total cumulative sentence of 11 years imprisonment. The applicant's sentence was structured by the imposition of five years imprisonment for the trafficking count on indictment 483/22 and a cumulative global head sentence of six years imprisonment for the two most serious offences of violence on indictments 492/22 and 988/21. The applicant was convicted but not further punished for Count 1 of indictment 483/22, and varying sentences of imprisonment were imposed for the balance of the counts on indictments 492/22 and 988/21 to be served concurrently with the global head sentence. The sole ground of appeal was that the sentence of five years imposed for Count 2 of indictment 483/22 was manifestly excessive.

The legal issue for the court to decide was whether the sentence imposed for Count 2 of indictment 483/22 was manifestly excessive. The applicant argued that the sentence was manifestly excessive and that this court should substitute a sentence of three and a half years imprisonment for that offence. The applicant emphasised that the trafficking occurred over a short period of six weeks, and the Crown did not assert that the trafficking business was conducted on a wholesale basis. The applicant relied on two cases, R v Blumke and R v Wilson, in which sentences of four years imprisonment were not disturbed on appeal. However, the applicant submitted that these cases "nevertheless do provide some support for the submission that a term of 5 years imprisonment in the present case was unjustifiably too long".

The court found that the applicant's submission that the sentence for the trafficking count was manifestly excessive should not be accepted. The court observed that appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such, that in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons. The court also noted that the sentencing judge's reference to the count of receiving property obtained from trafficking as constituting a particular of the trafficking count should be understood as a reflection of his Honour's evident intention to incorporate the offending constituting Count 1 in determining the appropriate head sentence for the trafficking count. This construction is consistent with the applicant's criminal conduct in relation to Count 1 as being separate and distinct to his criminal conduct in relation to Count 2. Further, the fact that his Honour convicted but did not further punish the applicant in relation to Count 1 supports an interpretation that the applicant's criminal conduct in relation to Count 1 was reflected in the global head sentence for Count 2.

The court concluded that the sentence imposed for the trafficking count was not manifestly excessive, and the application for leave to appeal should be refused. The court refused the application for leave to appeal against sentence.

Orders

Orders of the court

Application for leave to appeal against sentence be refused.

Background

Background to the litigation

If granted leave, the sole ground of appeal is that the sentence imposed in relation to the trafficking count on indictment 483/22 of five years was manifestly excessive. For the reasons that follow, the sentence imposed for the trafficking count is not manifestly excessive and the application for leave to appeal should be refused.The agreed statement of facts As there is no challenge to the sentences imposed in relation to the counts on indictments 492/22 and 988/21, the facts of this offending may be briefly stated. In relation to indictment 492/22, the applicant, together with Nathan Cullen, in mid-2014 commenced forming a criminal organisation involving a number of persons. The applicant tasked Cullen and another with recruiting 15 members. The group was in full operation by October 2014. Two of the recruited members were Shannon David Arnold and Clay Andrew Knight. They were bouncers at a nightclub in Surfers Paradise and had connections to other bouncers. Other members joined the group as a result of the recruitment activities. The applicant was the head of the criminal organisation. Each member was required to pay regular money into the group and to attend weekly meetings. Each member was also required to have a Harley Davidson motorbike and earn money for the club. Count 1 reflected the applicant’s participation in, and recruitment of others into, the criminal organisation. The most serious count on this indictment was the assault of the complainant, Paul Holden, resulting in bodily harm. The applicant and Knight had employment at a trucking company operated by Wayne Smith. Smith sought the applicant’s help to “sort out” the complainant. Smith had provided funds for another man’s business venture with the complainant, but the venture had not developed as anticipated. The applicant arranged for Arnold, Knight, Dawson and Bradley to accompany him and Smith to the complainant’s business premises. He told them that he was going to bash the complainant and that they were then to join in. On 11 December 2014, they arrived at the business. The applicant approached the complainant in a seemingly friendly way before knocking him down with one punch. He then proceeded to punch the complainant repeatedly in the head. The other four joined in, using their fists and feet on the complainant. The applicant picked up a one metre length of wood, told the others to get out of the way, and struck the complainant two to three times in the head with it. The complainant spent five days in hospital and although his injuries included a skull fracture and a partially amputated finger, all the injuries only amounted to bodily harm. It was this conduct that attracted the head sentence of six years. Count 4 on this indictment involved the applicant threatening violence to other members of the group. The applicant had received a text message from a member of the group, Brandy, advising that he had to leave the group due to family reasons. At a meeting with the applicant and six other members, the applicant loaded a handgun with a magazine and cocked the slide. These actions were witnessed by the other members. The applicant then placed the loaded handgun on a table with the gun barrel pointed at the members. The applicant said “if anyone knows where [Brandy] has gone, do speak up. If we find out anyone is lying, they will be receiving a bullet.” None of the members replied as they were unaware of Brandy’s whereabouts. The applicant also said “who wants to fucking leave now?”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In imposing the sentences for Count 1 and Count 2 on indictment 483/22, his Honour stated:[3]“In respect of the counts on indictment 483/2022, you are sentenced as follows. In respect of count 1, you are convicted and not further punished. That is a particular of the trafficking count. In respect of count 2, you are convicted and sentenced to five years imprisonment.”[3]AB 101.Consideration The applicant submits that the sentence of five years imprisonment for the trafficking was manifestly excessive and that this Court should substitute a sentence of three and a half years imprisonment for that offence. The applicant emphasises that the trafficking occurred over a short period of six weeks. The Crown did not assert that the trafficking business was conducted on a wholesale basis and accepted that the quantities of MDMA pills found at various member’s houses were consistent with those members supplying the pills on a street level basis. The applicant relies on R v Blumke [2015] QCA 264 and R v Wilson [2021] QCA 115 in which sentences of four years imprisonment were not disturbed on appeal. The applicant correctly identifies that the dismissal of the appeals in Blumke and Wilson does not assist in marking out a range for the offence of trafficking. The applicant however submits that the cases “nevertheless do provide some support for the submission that a term of 5 years imprisonment in the present case was unjustifiably too long”.[4][4]Applicant’s outline of submissions, paragraph 17. The applicant’s submission that the sentence for the trafficking count is manifestly excessive should not be accepted. First, the difficulty with the applicant suggesting appellable error by reference to two comparatives is that, as was observed by Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 584 at [58]:“… appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such, that in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.” To similar effect is the observation of Fraser JA in R v Goodwin; Ex parteAttorney-General (Qld) [2014] QCA 345 at [5]:“Whether or not a sentence is manifestly inadequate or manifestly excessive is not to be decided by reference to a predetermined range of available sentences but by reference to all of the factors relevant to sentence.” Secondly, the sentencing judge’s reference to the count of receiving property obtained from trafficking as constituting a particular of the trafficking count should be understood as a reflection of his Honour’s evident intention to incorporate the offending constituting Count 1 in determining the appropriate head sentence for the trafficking count. This construction is consistent with the applicant’s criminal conduct in relation to Count 1 as being separate and distinct to his criminal conduct in relation to Count 2. Further, the fact that his Honour convicted but did not further punish the applicant in relation to Count 1, supports an interpretation that the applicant’s criminal conduct in relation to Count 1 was reflected in the global head sentence for Count 2.

CITATION:	R v Crowden [2023] QCA 187
PARTIES:	R v CROWDEN, Ian Ronald (applicant)
FILE NO/S:	CA No 119 of 2022 SC No 492 of 2022 SC No 483 of 2022 SC No 988 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 17 May 2022 (Boddice J)
DELIVERED ON:	15 September 2023
DELIVERED AT:	Brisbane
HEARING DATE:	30 August 2023
JUDGES:	Bond and Flanagan JJA and Cooper J
ORDER:	Application for leave to appeal against sentence be refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to 14 counts contained in three indictments – where the applicant was sentenced to a total cumulative sentence of 11 years imprisonment – where the learned sentencing judge structured the sentence by imposing a sentence of five years imprisonment for the trafficking count on indictment 483/22, and a cumulative global head sentence of six years imprisonment for the two most serious offences of violence on indictments 492/22 and 988/21 – where the applicant was convicted but not further punished for Count 1 of indictment 483/22 – where varying sentences of imprisonment were imposed for the balance of the counts of indictments 492/22 and 988/21 to be served concurrently with the global head sentence – where the applicant does not challenge the sentences imposed for indictments 492/22 and 988/21 – where the sole ground of appeal is that the sentence of five years imposed for Count 2 of indictment 483/22 was manifestly excessive – where the sentencing judge considered that the applicant’s criminality viewed globally could not be met by a sentence of 10 years imprisonment – whether the sentence imposed for Count 2 of indictment 483/22 was manifestly excessive Corrective Services Act 2006 (Qld), s 185 R v Blumke[2015] QCA 264, cited R v Goodwin; Ex parte Attorney-General(Qld) (2014) 247 A Crim R 582; [2014] QCA 345, followed R v Wilson[2021] QCA 115, cited Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, followed
COUNSEL:	M J Copley KC for the applicant S L Dennis for the respondent
SOLICITORS:	Gatenby Criminal Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent