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R v Currey

R v Currey

Case [2017] QCA 213 26 September 2017

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Currey [2017] QCA 213

PARTIES:

R
v
CURREY, Troy John
(applicant)

FILE NO/S:

CA No 251 of 2016
DC No 327 of 2016
DC No 502 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport – Date of Sentence: 8 September 2016 (Clare SC DCJ)

DELIVERED ON:

26 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

4 April 2017

JUDGES:

Sofronoff P and Fraser JA and Applegarth J

ORDER:

Application for leave to appeal 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 pleas of guilty for counts of dangerous operation of a vehicle with a circumstance of aggravation that he was adversely affected by an intoxicating substance, assaulting a police officer who was acting in the execution of his duty, possessing a weapon with the circumstance of aggravation that he used the firearm to commit an indictable offence, and possessing a dangerous drug – where a period of two hundred and sixty-seven days of pre-sentence custody was declared as time served – where the sentencing judge fixed a parole eligibility date after the applicant will have served two years’ imprisonment – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the sentencing judge accepted submissions by the applicant’s counsel at trial that credit for the applicant’s pleas of guilty should be reflected by a reduction of the head sentence rather than by the usual approach of early parole eligibility – where the sentencing judge reduced the notional imprisonment of five years for Count 2 by 18 months, resulting in the effective sentence imposed of three years and six months’ imprisonment – whether the sentencing judge committed a procedural error in failing to invite submissions concerning the proportion of the sentence to be served before parole eligibility

R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, cited
R v Hess [2002] QCA 184, distinguished
R v Hoad[2005] QCA 92, cited
R v Isaac[2001] QCA 95, distinguished
R v Kitson[2008] QCA 86, distinguished
R v McDougall & Collas [2007] 2 Qd R 87; [2006] QCA 365, cited
R v Norton [2007] QCA 320, cited
R v Rooney; R v Gehringer [2016] QCA 48, cited
R v Staines[2011] QCA 321, distinguished
R v Vogt [1995] QCA 183, distinguished
R v Wing [2007] QCA 138, distinguished

COUNSEL:

J McInnes for the applicant
C W Heaton QC for the respondent

SOLICITORS:

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

SOFRONOFF P: I agree with the reasons of Fraser JA and with the order his Honour proposes.

FRASER JA: The applicant was convicted on his pleas of…

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 Currey

Details

AGLC: R v Currey [2017] QCA 213
Case: [2017] QCA 213
Decision Date: 26 September 2017

CaseChat Overview and Summary

The applicant was convicted on his pleas of guilty to various offences, including dangerous operation of a vehicle, assaulting a police officer, possessing a weapon, and possessing a dangerous drug. The sentencing judge accepted the submissions by the applicant’s counsel that credit for the guilty pleas should be reflected by a reduction of the head sentence rather than the usual approach of early parole eligibility. The sentencing judge fixed a parole eligibility date after the applicant would have served two years of imprisonment, imposing an effective sentence of three years and six months’ imprisonment. The applicant appealed against the sentence, arguing it was manifestly excessive.

The court was required to determine whether the sentence imposed was manifestly excessive or inadequate. The applicant contended that the sentence was manifestly excessive because the sentencing judge had failed to invite submissions concerning the proportion of the sentence to be served before parole eligibility. The court needed to consider whether the sentencing judge had committed a procedural error by not inviting submissions on this matter. The court also needed to consider whether the sentence was manifestly excessive, taking into account the applicant's criminal history, the nature and circumstances of the offences, and the need for the sentence to reflect the seriousness of the offending.

The court found that the sentencing judge had not committed a procedural error in failing to invite submissions concerning the proportion of the sentence to be served before parole eligibility. The court held that the sentencing judge had considered the appropriate credit for the guilty pleas and had exercised their discretion in determining the sentence. The court also held that the sentence was not manifestly excessive, taking into account the applicant's criminal history, the nature and circumstances of the offences, and the need for the sentence to reflect the seriousness of the offending.

The court refused the application for leave to appeal. The court held that the sentence was appropriate and did not constitute a manifestly excessive or inadequate sentence. The court found that the sentencing judge had exercised their discretion in determining the sentence and had considered the appropriate credit for the guilty pleas. The court held that the sentence reflected the seriousness of the offending and was not manifestly excessive.

Orders

Orders of the court

Application for leave to appeal 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Currey [2017] QCA 213

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 12 of 12 shown

R v Rooney; R v Gehringer
[2016] QCA 48 Para 1

…act that the non‑parole period under the head sentence imposed extends beyond the half‑way point of the term. [1] R v Rooney; R v Gehringer [2016] QCA 48 [16], citing R v Hoad [2005] QCA 92 [31]. See also Hili v The Queen (2010) 242 CLR 520.…
R v Staines
[2011] QCA 321 Para 1

…sentences imposed for combinations of offences with some broad similarities to the combination of offences committed by the applicant – R v Staines [2011] QCA 321, R v Wing [2007] QCA 138, and R v Vogt [1995] QCA 183. In Staines , the Court resentenced an offender on appeal for one count of the dangerous operatio…
Hili v The Queen
[2010] HCA 45 Para 1

…half‑way point of the term. [1] R v Rooney; R v Gehringer [2016] QCA 48 [16], citing R v Hoad [2005] QCA 92 [31]. See also Hili v The Queen (2010) 242 CLR 520.…
R v Kitson
[2008] QCA 86 Para 1

…ng to invite submissions concerning the proportion of the sentence to be served before parole eligibility. Counsel for the applicant cited R v Kitson [2008] QCA 86 at [20]-[22], which was decided in the context the principle, established by R v McDougall & Collas [2007] 2 Qd R 87 at 94 [14], 97 [21] and R v Assu…
R v Norton
[2007] QCA 320 Para 1

…se dated a point later than half of the term. In R v Kitson at [17], after referring to relevant legislative provisions, I referred to R v Norton [2007] QCA 320 and observed, that “where the applicant has a claim upon the discretion for an order that he be released after serving less than half of the head sentenc…
R v Assurson
[2007] QCA 273 Para 1

…20]-[22], which was decided in the context the principle, established by R v McDougall & Collas [2007] 2 Qd R 87 at 94 [14], 97 [21] and R v Assurson [2007] QCA 273 at [22], [27], and [33]-[34], that “good reason” should be demonstrated before a sentencing court fixes a parole release dated a point later than hal…
R v Wing
[2007] QCA 138 Para 1

…binations of offences with some broad similarities to the combination of offences committed by the applicant – R v Staines [2011] QCA 321, R v Wing [2007] QCA 138, and R v Vogt [1995] QCA 183. In Staines , the Court resentenced an offender on appeal for one count of the dangerous operation of a motor vehicle and…
R v McDougall and Collas
[2006] QCA 365

…[2001] QCA 95, distinguished R v Kitson [2008] QCA 86, distinguished R v McDougall & Collas [2007] 2 Qd R 87; [2006] QCA 365, cited R v Norton [2007] QCA 320, cited R v Rooney; R v Gehringer [2016] QCA 48, cited R v Staines [2011] QCA 321, distinguished R v Vogt [1995] QCA 183, distinguished R v Wing [2007] QCA 1…
R v Hoad
[2005] QCA 92 Para 1

…the head sentence imposed extends beyond the half‑way point of the term. [1] R v Rooney; R v Gehringer [2016] QCA 48 [16], citing R v Hoad [2005] QCA 92 [31]. See also Hili v The Queen (2010) 242 CLR 520.…
R v Hess
[2002] QCA 184 Para 1

…of being affected by an intoxicating substance, for which the maximum penalty is five years’ imprisonment. In R v Isaac [2001] QCA 95 and R v Hess [2002] QCA 184, the offenders were sentenced to two years’ imprisonment. In Isaac the sentence was suspended after six months with an operational period of two and a…
R v Isaac
[2001] QCA 95 Para 1

…circumstance of aggravation of being affected by an intoxicating substance, for which the maximum penalty is five years’ imprisonment. In R v Isaac [2001] QCA 95 and R v Hess [2002] QCA 184, the offenders were sentenced to two years’ imprisonment. In Isaac the sentence was suspended after six months with an oper…
QCA 138, and R v Vogt
[1995] QCA 183 Para 1

…me broad similarities to the combination of offences committed by the applicant – R v Staines [2011] QCA 321, R v Wing [2007] QCA 138, and R v Vogt [1995] QCA 183. In Staines , the Court resentenced an offender on appeal for one count of the dangerous operation of a motor vehicle and two summary offences under th…

Legislation cited in this decision · 1

Weapons Act 1990 (Qld)
50(1)(d)(i)) 2 mentions (from Para 1)

CITATION:	R v Currey [2017] QCA 213
PARTIES:	R v CURREY, Troy John (applicant)
FILE NO/S:	CA No 251 of 2016 DC No 327 of 2016 DC No 502 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport – Date of Sentence: 8 September 2016 (Clare SC DCJ)
DELIVERED ON:	26 September 2017
DELIVERED AT:	Brisbane
HEARING DATE:	4 April 2017
JUDGES:	Sofronoff P and Fraser JA and Applegarth J
ORDER:	Application for leave to appeal 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 pleas of guilty for counts of dangerous operation of a vehicle with a circumstance of aggravation that he was adversely affected by an intoxicating substance, assaulting a police officer who was acting in the execution of his duty, possessing a weapon with the circumstance of aggravation that he used the firearm to commit an indictable offence, and possessing a dangerous drug – where a period of two hundred and sixty-seven days of pre-sentence custody was declared as time served – where the sentencing judge fixed a parole eligibility date after the applicant will have served two years’ imprisonment – whether the sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the sentencing judge accepted submissions by the applicant’s counsel at trial that credit for the applicant’s pleas of guilty should be reflected by a reduction of the head sentence rather than by the usual approach of early parole eligibility – where the sentencing judge reduced the notional imprisonment of five years for Count 2 by 18 months, resulting in the effective sentence imposed of three years and six months’ imprisonment – whether the sentencing judge committed a procedural error in failing to invite submissions concerning the proportion of the sentence to be served before parole eligibility R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, cited R v Hess [2002] QCA 184, distinguished R v Hoad[2005] QCA 92, cited R v Isaac[2001] QCA 95, distinguished R v Kitson[2008] QCA 86, distinguished R v McDougall & Collas [2007] 2 Qd R 87; [2006] QCA 365, cited R v Norton [2007] QCA 320, cited R v Rooney; R v Gehringer [2016] QCA 48, cited R v Staines[2011] QCA 321, distinguished R v Vogt [1995] QCA 183, distinguished R v Wing [2007] QCA 138, distinguished
COUNSEL:	J McInnes for the applicant C W Heaton QC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent