R v Gray - [2010] QCA 161

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gray [2010] QCA 161

PARTIES:

R
v
GRAY, Vernon Richard
(applicant/appellant)

FILE NO/S:

CA No 83 of 2010
DC No 1161 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

25 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

15 June 2010

JUDGES:

Chief Justice and Fraser JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for leave to appeal allowed;

2. Appeal allowed only to the extent that a parole release date of 30 June 2010 be added.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant breached his suspended sentence resulting in the activation of the whole of his suspended sentence – where the primary judge fixed the applicant’s parole release date at the end of the term of the suspended sentence – where the applicant’s parole release date was then the same as his full term release date – where the applicant required treatment for mental illness and alcoholism and had recently received compensation for abuse in a State institution – whether the sentence manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant breached his suspended sentence resulting in the activation of the whole of his suspended sentence – where the primary judge fixed the applicant’s parole release date at the end of the term of the suspended sentence – where applicant’s parole release date was then the same as his full term release date – where primary judge was led to believe by the Crown Prosecutor that the parole release date was required to be fixed at the end of the term of the applicant’s suspended sentence – whether the applicant’s parole release date was required to be fixed at the end of the term of the applicant’s suspended sentence

Penalties and SentencesAct 1992 (Qld), s 146, s 147, s 160B(3)

R v Norden [2009] 2 Qd R 455; [2009] QCA 42, cited

COUNSEL:

The applicant appeared on his own behalf
G J Cummings for the respondent

SOLICITORS:

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

CHIEF JUSTICE: I am grateful to Atkinson J for her recitation of the relevant circumstances. I agree with the orders proposed by Her Honour.

The learned sentencing Judge was alive to the need to fix the parole release date because of s 160B(3) of the Penalties and Sentences Act 1992. The error was to determine to activate fully the suspended term without concurrently considering the prospect of setting a parole release date prior to the expiration of that term of imprisonment. That is the process required in light of R v Norden [2009] QCA 42.

That…

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 Gray

Details

AGLC: R v Gray [2010] QCA 161
Case: [2010] QCA 161
Decision Date: 25 June 2010

CaseChat Overview and Summary

In the case of R v Gray, the applicant appealed against his sentence, arguing that it was manifestly excessive. The applicant had breached his suspended sentence, which resulted in the activation of the entire suspended sentence. The primary judge had fixed the applicant's parole release date at the end of the term of the suspended sentence, making it the same as his full term release date. The applicant had required treatment for mental illness and alcoholism, and had recently received compensation for abuse in a State institution.

The legal issues before the court were whether the sentence was manifestly excessive and whether the primary judge acted on the wrong principle in fixing the applicant's parole release date. The applicant argued that the sentence was manifestly excessive due to his mental health issues, his history of abuse, and the recent compensation received. The court also considered whether the primary judge was led to believe by the Crown Prosecutor that the parole release date was required to be fixed at the end of the term of the applicant's suspended sentence.

The court found that the primary judge had been led to believe by the Crown Prosecutor that the parole release date was required to be fixed at the end of the term of the applicant's suspended sentence, which was incorrect. The court also found that the sentence was not manifestly excessive, but that the parole release date should have been fixed at a different time. The application for leave to appeal was allowed, and the appeal was allowed only to the extent that a parole release date of 30 June 2010 be added.

Orders

Orders of the court

1. Application for leave to appeal allowed;

2. Appeal allowed only to the extent that a parole release date of 30 June 2010 be added.

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 Gray [2010] QCA 161
PARTIES:	R v GRAY, Vernon Richard (applicant/appellant)
FILE NO/S:	CA No 83 of 2010 DC No 1161 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	25 June 2010
DELIVERED AT:	Brisbane
HEARING DATE:	15 June 2010
JUDGES:	Chief Justice and Fraser JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal allowed; 2. Appeal allowed only to the extent that a parole release date of 30 June 2010 be added.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant breached his suspended sentence resulting in the activation of the whole of his suspended sentence – where the primary judge fixed the applicant’s parole release date at the end of the term of the suspended sentence – where the applicant’s parole release date was then the same as his full term release date – where the applicant required treatment for mental illness and alcoholism and had recently received compensation for abuse in a State institution – whether the sentence manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant breached his suspended sentence resulting in the activation of the whole of his suspended sentence – where the primary judge fixed the applicant’s parole release date at the end of the term of the suspended sentence – where applicant’s parole release date was then the same as his full term release date – where primary judge was led to believe by the Crown Prosecutor that the parole release date was required to be fixed at the end of the term of the applicant’s suspended sentence – whether the applicant’s parole release date was required to be fixed at the end of the term of the applicant’s suspended sentence Penalties and SentencesAct 1992 (Qld), s 146, s 147, s 160B(3) R v Norden [2009] 2 Qd R 455; [2009] QCA 42, cited
COUNSEL:	The applicant appeared on his own behalf G J Cummings for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent