R v Cutrona - [2013] QCA 373

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cutrona [2013] QCA 373

PARTIES:

R
v
CUTRONA, Dylan James
(applicant)

FILE NO/S:

CA No 231 of 2013
DC No 236 of 2013
DC No 276 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

13 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

2 December 2013

JUDGE:

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

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – WHEN REFUSED – where the applicant pleaded guilty to one count of armed robbery with personal violence – where the applicant was sentenced to three years’ imprisonment suspended after six months, with an operational period of three years – whether sufficient weight was given to a combination of mitigating circumstances in requiring that the applicant serve time in prison – where the applicant argued that the sentences should have been fully suspended – whether the sentencing discretion miscarried – whether the application should be allowed

Penalties and Sentences Act 1992 (Qld), s 9(3), s 9(4)

R v Sherman[2007] QCA 322, considered

COUNSEL:

S Crofton for the applicant
P J McCarthy for the respondent

SOLICITORS:

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

HOLMES JA: I agree with the reasons of Daubney J and the order he proposes.

FRASER JA: I agree with the reasons for judgment of Daubney J and the order proposed by his Honour.

DAUBNEY J: On 28 August 2013, the applicant pleaded guilty to one count of armed robbery with personal violence, that offence having been committed on 4 September 2012. He was sentenced to three years’ imprisonment suspended after six months, with an operational period of three years. He also pleaded guilty to having assaulted a police officer on 31 August 2012. For that offence he was imprisoned for two months (to be served concurrently).

The applicant now seeks leave to appeal the sentences arguing that, whilst the head sentences were not manifestly excessive, the learned sentencing judge failed to give sufficient weight to a “combination of unusually favourable mitigating circumstances” in requiring that the applicant serve time in prison. The applicant’s argument was that the sentences should have been fully suspended. Counsel for the applicant also submitted that this Court could now have regard to the fact that the applicant has now spent just over three months in prison and that, if minded to grant leave to appeal, this Court could now order that the sentence be suspended forthwith.

Background

The applicant is 21 years old. The only criminal history he had was for possession of dangerous drugs, in respect of which no conviction was recorded and a fine of $450 was imposed on 1 November 2011.

The circumstances of the armed robbery count can be stated…

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 Cutrona

Details

AGLC: R v Cutrona [2013] QCA 373
Case: [2013] QCA 373
Decision Date: 13 December 2013

CaseChat Overview and Summary

The applicant, Cutrona, appealed against the sentence imposed by the lower court, which had found him guilty of armed robbery with personal violence. The sentence was a three-year imprisonment term, suspended after serving six months, with an operational period of three years. The appeal centred on whether the sentencing judge had appropriately considered the mitigating factors presented and whether the sentence should have been fully suspended instead. The central issue was whether the sentencing discretion had miscarried, warranting an appeal against the sentence.

The court considered the mitigating factors presented, including the applicant's background, remorse, and the impact of the crime on the victims. The court emphasised that while the mitigating factors were significant, they did not warrant a fully suspended sentence. The court held that the sentence imposed was within the bounds of judicial discretion and that the sentencing judge had adequately weighed the mitigating factors. The court found no miscarriage of discretion in the sentencing process, leading to the conclusion that the application for leave to appeal against the sentence should be refused.

In light of the findings, the application for leave to appeal against the sentence was denied. The sentence of three years' imprisonment, suspended after six months, with an operational period of three years, was upheld as appropriate. The court found that the sentence reflected a balanced consideration of all relevant factors and that the sentencing discretion had not miscarried. The applicant was not granted leave to appeal, and the original sentence stood as imposed by the lower court.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

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 Cutrona [2013] QCA 373
PARTIES:	R v CUTRONA, Dylan James (applicant)
FILE NO/S:	CA No 231 of 2013 DC No 236 of 2013 DC No 276 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	13 December 2013
DELIVERED AT:	Brisbane
HEARING DATE:	2 December 2013
JUDGE:	Holmes and Fraser JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – WHEN REFUSED – where the applicant pleaded guilty to one count of armed robbery with personal violence – where the applicant was sentenced to three years’ imprisonment suspended after six months, with an operational period of three years – whether sufficient weight was given to a combination of mitigating circumstances in requiring that the applicant serve time in prison – where the applicant argued that the sentences should have been fully suspended – whether the sentencing discretion miscarried – whether the application should be allowed Penalties and Sentences Act 1992 (Qld), s 9(3), s 9(4) R v Sherman[2007] QCA 322, considered
COUNSEL:	S Crofton for the applicant P J McCarthy for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions Queensland for the respondent