R v Ellis - [2018] QCA 70

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ellis [2018] QCA 70

PARTIES:

R
v
ELLIS, Mitchel Wayne
(applicant)

FILE NO/S:

CA No 195 of 2017
DC No 315 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns – Date of Sentence: 22 August 2017 (Morzone QC DCJ)

DELIVERED ON:

17 April 2018

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2018

JUDGES:

Morrison and Philippides JJA and Brown J

ORDER:

The 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 was sentenced on his pleas to three offences: torture for which he was sentenced to six and a half years imprisonment, assault occasioning bodily harm for which he received 18 months imprisonment, and malicious act with intent for which he received six years imprisonment – where a total of 326 days of pre-sentence custody was declared as time already served – where the offence of torture was declared a serious violent offence and the period of an existing Protection Order was extended by five years to 16 November 2023 – where the applicant had a prior criminal history – where the impact of the offending on the complainant included disfigurement and the complainant feeling fearful and detached from family and friends – where the sentencing judge had regard to matters of mitigation referring to the pleas of guilty – where the sentencing judge took into account the applicant’s personal history including the applicant’s history of substance abuse – where the sentencing judge took into account the totality of the offending – whether the sentence of six and a half years imprisonment for torture was manifestly excessive in all the circumstances

Penalties and Sentences Act 1992 (Qld), s 9(10A), s 13, s 161B(3)

R v BH; ex parte Attorney-General (2000) 110 A Crim R 499; [2000] QCA 110, considered
R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206, cited
R v Compton [2017] 2 Qd R 586; [2017] QCA 55, considered
R v Galleghan[2017] QCA 186, considered
R v HAC[2006] QCA 460, considered
R v Mitchell[2006] QCA 240, considered
R v Roelandts (2002) 131 A Crim R 603; [2002] QCA 254, considered

COUNSEL:

The applicant appeared on his own behalf
D Nardone for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: I agree with the reasons of Philippides JA and the order her Honour proposes.
PHILIPPIDES JA: On 22 August 2017, the applicant was sentenced on his pleas to three offences, being: torture (count 1) for which he was sentenced to six and a half years imprisonment; assault occasioning bodily harm (count 2) for which he received 18 months imprisonment; and malicious act with intent (count 3) for which he received six years imprisonment. A total…

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 Ellis

Details

AGLC: R v Ellis [2018] QCA 70
Case: [2018] QCA 70
Decision Date: 17 April 2018

CaseChat Overview and Summary

The case of R v Ellis involved the appellant who was sentenced for three offences: torture, assault occasioning bodily harm, and a malicious act with intent. The Court of Appeal was asked to determine if the sentence imposed was manifestly excessive or inadequate, specifically regarding the six and a half years imprisonment for the torture offence. The appellant had a history of criminal activity and substance abuse, and the offences resulted in significant psychological and physical harm to the victim.

The court had to consider whether the sentence for the torture offence was excessive by examining the totality of the offending, the impact on the victim, and the mitigating factors such as the guilty pleas. The sentencing judge had considered the nature of the injuries, the victim impact, and the appellant's personal history, including substance abuse. The court noted that the declaration of a serious violent offence and the extension of a Protection Order were also part of the sentencing process. The appellant argued for a resentencing at the lower end of the sentencing range with parole eligibility after two to three years.

The Court of Appeal found that the sentencing judge had correctly considered all relevant factors and appropriately exercised their discretion. The judge did not mechanically apply the law but instead considered the integrated nature of the sentencing process, including the making of a serious violent offender declaration. The court concluded that the sentence was not manifestly excessive and dismissed the appeal.

The final order was that the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

The application for leave to appeal against sentence be 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

The applicant contended that, in the event that the sentence was found to be manifestly excessive, he ought to be resentenced at the lower end of the range, that is six and a half years, with no declaration being made and with parole eligibility after two to three years (in lieu of the five years required to be served under the sentence imposed by the sentencing judge).Consideration Grounds 4 and 5 may be dealt with briefly and are clearly without substance. The sentencing judge correctly recorded the nature of the scarring which constituted the disfigurement. It was the subject of an agreed fact in the schedule of facts. As to the psychological aspects of the offending, these were set out in the victim impact statement made by the complainant for which treatment had not then been sought. The nature of the injuries inflicted upon the complainant were not challenged at sentence and the sentencing judge gave them due regard. As to the complaint that the sentencing judge erred in his approach in not sentencing at the bottom of the appropriate sentencing range given that a declaration was also made, at the sentencing hearing, reliance was placed on the following statement of Moynihan SJA and Atkinson J, in BH,[6] concerning the exercise of the sentencing discretion under s 161B(3) of the PSA in favour of the making of a serious violent offence declaration:“When such a declaration is made it is likely to have consequences on the rest of the sentencing discretion. Firstly the sentencing judge may impose a sentence towards the lower end of the applicable range.[7] Secondly if there is a plea of guilty, the appropriate reduction in sentence[8] will reduce the head sentence rather than require a recommendation for parole earlier than half the sentence to be served.”[6][2000] QCA 110 at [32].[7]R v Bojovic [1999] QCA 206; CA No 4 of 1999, 8 June 1999 at [31].[8]Penalties and Sentences Act 1992 s 13. That passage was referred to the sentencing judge in regard to the submission made on behalf of the applicant that, if a declaration was to be made, the sentencing judge ought to commence the exercising process by adopting the bottom end of the range, being six years, and then further moderate the head sentence to recognise the pleas of guilty, so as to reduce the head sentence to five years imprisonment. The applicant submitted, to this Court, that the sentencing judge appeared not to have imposed a sentence “towards the lower end of the applicable range” before then moderating further for the pleas of guilty and that his Honour had seemingly adopted the Crown’s submission that an appropriate sentence was one of seven years, in the middle of the range, and then further moderated it by six months for the pleas of guilty. The declaration under s 161B(3) of the PSA is, as recognised in BH, a part of the exercise of the sentencing discretion which is an integrated process[9] rather than a series of discrete steps. There is no reason to believe that the sentencing judge approached his sentencing discretion in the mathematical manner suggested rather than a part of an integrated sentencing process, nor that he failed to have regard to the balancing process referred to in the quoted extract to which he was referred. In BH, Moynihan SJA and Atkinson J observed,[10] in relation to the discretion to make a declaration, that it is likely that a person who is convicted of the crime of torture, particularly where it involves the intentional infliction of pain or suffering on more than one occasion, will be declared a serious violent offender and that that “reflects the nature of the offence”.[9]R v Bojovic [1999] QCA 206; CA No 4 of 1999, 8 June 1999 at [31].[10][2000] QCA 110 at [32].

CITATION:	R v Ellis [2018] QCA 70
PARTIES:	R v ELLIS, Mitchel Wayne (applicant)
FILE NO/S:	CA No 195 of 2017 DC No 315 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns – Date of Sentence: 22 August 2017 (Morzone QC DCJ)
DELIVERED ON:	17 April 2018
DELIVERED AT:	Brisbane
HEARING DATE:	22 March 2018
JUDGES:	Morrison and Philippides JJA and Brown J
ORDER:	The 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 was sentenced on his pleas to three offences: torture for which he was sentenced to six and a half years imprisonment, assault occasioning bodily harm for which he received 18 months imprisonment, and malicious act with intent for which he received six years imprisonment – where a total of 326 days of pre-sentence custody was declared as time already served – where the offence of torture was declared a serious violent offence and the period of an existing Protection Order was extended by five years to 16 November 2023 – where the applicant had a prior criminal history – where the impact of the offending on the complainant included disfigurement and the complainant feeling fearful and detached from family and friends – where the sentencing judge had regard to matters of mitigation referring to the pleas of guilty – where the sentencing judge took into account the applicant’s personal history including the applicant’s history of substance abuse – where the sentencing judge took into account the totality of the offending – whether the sentence of six and a half years imprisonment for torture was manifestly excessive in all the circumstances Penalties and Sentences Act 1992 (Qld), s 9(10A), s 13, s 161B(3) R v BH; ex parte Attorney-General (2000) 110 A Crim R 499; [2000] QCA 110, considered R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206, cited R v Compton [2017] 2 Qd R 586; [2017] QCA 55, considered R v Galleghan[2017] QCA 186, considered R v HAC[2006] QCA 460, considered R v Mitchell[2006] QCA 240, considered R v Roelandts (2002) 131 A Crim R 603; [2002] QCA 254, considered
COUNSEL:	The applicant appeared on his own behalf D Nardone for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent