R v Degn - [2021] QCA 33

SUPREME COURT OF QUEENSLAND

CITATION:

R v Degn [2021] QCA 33

PARTIES:

R
v
DEGN, Brooke Amanda
(applicant)

FILE NO/S:

CA No 167 of 2020
DC No 7 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville – Date of Sentence: 23 July 2020 (Coker DCJ)

DELIVERED ON:

5 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

24 February 2021

JUDGES:

Holmes CJ and Morrison and Mullins JJA

ORDERS:

1.   Application for leave to appeal against sentence allowed.

2.   Appeal against sentence allowed.

3.   Vary the sentence by substituting a parole eligibility date of 13 February 2022.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was sentenced to six years imprisonment for rape, with parole eligibility set after two years – where the applicant had served most of an earlier period of six years imprisonment at the date of sentence – where the applicant contends that the sentencing judge fixed the parole eligibility date by reference to the sentence he imposed, rather than the period of imprisonment, and therefore failed to apply s 160F of the Penalties and Sentences Act 1992 – whether the sentencing judge failed to take into account that the parole eligibility date would apply to the entire period of imprisonment – whether the sentencing discretion miscarried

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant argues that the setting of a parole eligibility date eight years after the applicant first went into custody rendered the sentence manifestly excessive – whether the sentencing judge, in applying the totality principle, had the requisite regard to the minimum time required to be served in custody – whether the total effect of the period of imprisonment is manifestly excessive

Penalties and Sentence Act 1992 (Qld), s 160F

R v Bahcehan[2019] QCA 278, cited
R v Berns[2020] QCA 36, cited
R v WBK (2020) 4 QR 110; [2020] QCA 60, cited

COUNSEL:

J McInnes for the applicant
D Nardone for the respondent

SOLICITORS:

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

HOLMES CJ: The applicant seeks leave to appeal a sentence of six years imprisonment for rape, with parole eligibility after she had served one-third of that sentence. At the same time, lesser sentences of imprisonment were imposed on her in respect of six counts of sexual assault in company, and two counts of common assault. A complicating factor was that at the date of sentence, 23 July 2020, the applicant had served most of an earlier period of imprisonment of six years in respect of previous offending. The grounds of the proposed appeal are that the sentence of six years imprisonment for rape with parole eligibility after two years was manifestly excessive and that the sentencing discretion miscarried because…

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 Degn

Details

AGLC: R v Degn [2021] QCA 33
Case: [2021] QCA 33
Decision Date: 5 March 2021

CaseChat Overview and Summary

The applicant in this case, R v Degn, appealed against the sentence imposed on him by the Court of Appeal of the Supreme Court of Victoria. The applicant was sentenced to six years imprisonment for rape, with parole eligibility set after two years. He had already served most of a previous six-year sentence at the time of the current sentence. The applicant argued that the sentencing judge erred by setting the parole eligibility date in relation to the sentence imposed, rather than the total period of imprisonment served. He contended that the sentencing judge failed to apply section 160F of the Penalties and Sentences Act 1992, and did not consider that the parole eligibility date would apply to the entire period of imprisonment. The applicant also argued that the sentence was manifestly excessive, as the parole eligibility date would be set eight years after he first went into custody.

The court was required to decide whether the sentencing judge had acted on the wrong principle by fixing the parole eligibility date in relation to the sentence imposed, rather than the period of imprisonment. The court also needed to determine whether the sentencing judge had failed to consider the total period of imprisonment when setting the parole eligibility date, and whether the total effect of the period of imprisonment was manifestly excessive. The court was required to consider whether the sentence miscarried due to the sentencing judge's failure to apply the correct legal principle.

The court found that the sentencing judge had acted on the wrong principle by fixing the parole eligibility date in relation to the sentence imposed, rather than the period of imprisonment. The court held that the sentencing judge failed to take into account that the parole eligibility date would apply to the entire period of imprisonment, and therefore misapplied the law. The court also found that the sentence was manifestly excessive, as the parole eligibility date would be set eight years after the applicant first went into custody. The court held that the sentencing judge, in applying the totality principle, had not had the requisite regard to the minimum time required to be served in custody. The court concluded that the sentencing discretion miscarried.

The court allowed the application for leave to appeal against sentence, allowed the appeal against sentence, and varied the sentence by substituting a parole eligibility date of 13 February 2022.

Orders

Orders of the court

1. Application for leave to appeal against sentence allowed.

2. Appeal against sentence allowed.

3. Vary the sentence by substituting a parole eligibility date of 13 February 2022.

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.

CITATION:	R v Degn [2021] QCA 33
PARTIES:	R v DEGN, Brooke Amanda (applicant)
FILE NO/S:	CA No 167 of 2020 DC No 7 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville – Date of Sentence: 23 July 2020 (Coker DCJ)
DELIVERED ON:	5 March 2021
DELIVERED AT:	Brisbane
HEARING DATE:	24 February 2021
JUDGES:	Holmes CJ and Morrison and Mullins JJA
ORDERS:	1. Application for leave to appeal against sentence allowed. 2. Appeal against sentence allowed. 3. Vary the sentence by substituting a parole eligibility date of 13 February 2022.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was sentenced to six years imprisonment for rape, with parole eligibility set after two years – where the applicant had served most of an earlier period of six years imprisonment at the date of sentence – where the applicant contends that the sentencing judge fixed the parole eligibility date by reference to the sentence he imposed, rather than the period of imprisonment, and therefore failed to apply s 160F of the Penalties and Sentences Act 1992 – whether the sentencing judge failed to take into account that the parole eligibility date would apply to the entire period of imprisonment – whether the sentencing discretion miscarried CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant argues that the setting of a parole eligibility date eight years after the applicant first went into custody rendered the sentence manifestly excessive – whether the sentencing judge, in applying the totality principle, had the requisite regard to the minimum time required to be served in custody – whether the total effect of the period of imprisonment is manifestly excessive Penalties and Sentence Act 1992 (Qld), s 160F R v Bahcehan[2019] QCA 278, cited R v Berns[2020] QCA 36, cited R v WBK (2020) 4 QR 110; [2020] QCA 60, cited
COUNSEL:	J McInnes for the applicant D Nardone for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent