R v Fowler - [2022] QCA 265

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fowler [2022] QCA 265

PARTIES:

R
v
FOWLER, Anthony Stuart
(applicant)

FILE NO/S:

CA No 231 of 2022
DC No 600 of 2022
DC No 1542 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 14 October 2022 (Clare SC DCJ)

DELIVERED ON:

20 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 2022

JUDGES:

Bond and Flanagan JJA and Crow J

ORDER:

Application dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of extortion, seven counts of threatening violence, one court of dangerous conduct with a weapon and two counts of breaching a domestic violence order – where the applicant was sentenced to six years’ imprisonment on the extortion count and 12 months’ imprisonment to be served concurrently on one of the contraventions of a domestic violence order counts – where the applicant was to be eligible for parole on 12 November 2022 – where the applicant had limited antecedents in his favour other than a plea of guilty – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant claims the sentencing judge erred by giving no, or insufficient, regard to principles of totality and that the sentence imposed was harsh – where the sentencing judge provided a discount on the basis of the principle of totality, reducing the period of the sentence from eight years to six years – whether the sentencing judge gave insufficient regard to the principle of totality

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant submits the sentencing judge failed to comply with the two-stage process under s 159A of the Penalties and Sentences Act1992 (Qld) – where a pre-sentence custody certificate was tendered at the sentence – where the sentencing judge did not state the dates the applicant had been held in pre-sentence custody and did not calculate the times the applicant was held in pre-sentence custody – where the court order sheet did include the appropriate s 159A declarations – where the error was technical in nature – whether this is an appealable error

Penalties and Sentences Act1992 (Qld), s 159A

R vBraeckmans[2022] QCA 25, cited
R v Dean; R v Murphy; R v Jaffe[2017] QCA 276, cited
R v Stratton[1992] QCA 102, considered
R v Whitely (2021) 8 QR 283; [2021] QSC 154, applied
R v Wilson[2022] QCA 18, cited

COUNSEL:

S L Kissick for the applicant
C W Wallis for the respondent

SOLICITORS:

Fallu McMillan Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

BOND JA: I agree…

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 Fowler

Details

AGLC: R v Fowler [2022] QCA 265
Case: [2022] QCA 265
Decision Date: 20 December 2022

CaseChat Overview and Summary

In the matter of R v Fowler, the applicant sought to appeal against his sentence, arguing that it was manifestly excessive. The applicant had pleaded guilty to multiple charges, including extortion, threatening violence, dangerous conduct with a weapon, and breaches of domestic violence orders. The sentencing judge imposed a total imprisonment term of seven years, with a non-parole period of four years and nine months, and the applicant was to be eligible for parole on 12 November 2022. The applicant's appeal was grounded on the contention that the sentence was manifestly excessive, the judge had acted on the wrong principle by giving insufficient regard to the principle of totality, and the judge failed to comply with the statutory requirements under section 159A of the Penalties and Sentences Act 1992 (Qld).

The court examined the sentencing principles and the statutory compliance issues raised by the applicant. The court noted that the sentencing judge had indeed applied the principle of totality, reducing the overall sentence from an initial eight years to six years. The court found that the sentence was within the appropriate range, considering the seriousness of the offences and the need for general and specific deterrence. The court also addressed the technical error in the sentencing process, where the judge did not explicitly state the dates and duration of the applicant's pre-sentence custody, despite the court order sheet including the necessary declarations. The court determined that this error, while technical, did not warrant interference with the sentence.

Upon considering the grounds for appeal, the court concluded that none of the grounds presented a compelling case for interference with the sentence. The court found that the sentence was not manifestly excessive, the sentencing judge had adequately considered the principle of totality, and the error in the pre-sentence custody declaration did not affect the overall fairness of the sentencing process. Therefore, the application for appeal was dismissed.

Orders

Orders of the court

Application dismissed.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Fowler [2022] QCA 265
PARTIES:	R v FOWLER, Anthony Stuart (applicant)
FILE NO/S:	CA No 231 of 2022 DC No 600 of 2022 DC No 1542 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 14 October 2022 (Clare SC DCJ)
DELIVERED ON:	20 December 2022
DELIVERED AT:	Brisbane
HEARING DATE:	1 November 2022
JUDGES:	Bond and Flanagan JJA and Crow J
ORDER:	Application dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of extortion, seven counts of threatening violence, one court of dangerous conduct with a weapon and two counts of breaching a domestic violence order – where the applicant was sentenced to six years’ imprisonment on the extortion count and 12 months’ imprisonment to be served concurrently on one of the contraventions of a domestic violence order counts – where the applicant was to be eligible for parole on 12 November 2022 – where the applicant had limited antecedents in his favour other than a plea of guilty – whether the sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant claims the sentencing judge erred by giving no, or insufficient, regard to principles of totality and that the sentence imposed was harsh – where the sentencing judge provided a discount on the basis of the principle of totality, reducing the period of the sentence from eight years to six years – whether the sentencing judge gave insufficient regard to the principle of totality CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant submits the sentencing judge failed to comply with the two-stage process under s 159A of the Penalties and Sentences Act1992 (Qld) – where a pre-sentence custody certificate was tendered at the sentence – where the sentencing judge did not state the dates the applicant had been held in pre-sentence custody and did not calculate the times the applicant was held in pre-sentence custody – where the court order sheet did include the appropriate s 159A declarations – where the error was technical in nature – whether this is an appealable error Penalties and Sentences Act1992 (Qld), s 159A R vBraeckmans[2022] QCA 25, cited R v Dean; R v Murphy; R v Jaffe[2017] QCA 276, cited R v Stratton[1992] QCA 102, considered R v Whitely (2021) 8 QR 283; [2021] QSC 154, applied R v Wilson[2022] QCA 18, cited
COUNSEL:	S L Kissick for the applicant C W Wallis for the respondent
SOLICITORS:	Fallu McMillan Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent