R v Hartas - [2021] QCA 178

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hartas [2021] QCA 178

PARTIES:

R
v
HARTAS, Corey James
(applicant)

FILE NO/S:

CA No 30 of 2021
DC No 2254 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 3 February 2021 (East QC ADCJ)

DELIVERED ON:

27 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

28 July 2021

JUDGES:

Fraser and Morrison JJA and Applegarth J

ORDER:

Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant set fire to two complainant’s vehicles using a petrol bomb – where the applicant was convicted on his own plea of one count of arson being a domestic violence offence – where the applicant was sentenced to three years’ imprisonment – where the applicant submitted a psychological report in respect of his personal background and mental condition – whether the learned sentencing judge appropriately considered the psychological report

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to three years’ imprisonment upon his own plea for an offence of arson being a domestic violence offence – where the parole release date was fixed at a date being 12 months from the date of sentence, taking into account eight days of pre-sentence custody – where the applicant contends that mitigating features were not appropriately taken into account in setting the parole date – whether the sentence was manifestly excessive

R v Bowley (2016) 262 A Crim R 93; [2016] QCA 254, considered
R v Tsiaras [1996] 1 VR 398; [1996] VicRp 26, considered

COUNSEL:

S E Harburg for the applicant
D Nardone for the respondent

SOLICITORS:

Rostron Carlyle Rojas Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment given by Morrison JA and the order proposed by his Honour.
MORRISON JA: The applicant had been in a short-term relationship with one of the complainants (to whom I shall refer as Jan) in April and May 2020. It lasted only about six weeks, ending at Jan’s instance.
When they broke up Jan recommenced a relationship with the other complainant, her previous boyfriend.
On 26 May 2020 the applicant drove past Jan’s house and saw an unfamiliar car parked in the driveway. He contacted her and she told him that it was her ex-boyfriend’s car.
The next night, at 11.45 pm, the applicant drove to Jan’s house. He was intoxicated. He brought with him the components to make a Molotov cocktail, namely a container of fuel, an empty vodka bottle, matches and some paper to act as a wick. Whilst outside Jan’s house he constructed the Molotov cocktail and then threw it between the two cars in the carport. He then drove away.
Jan’s house was directly behind…

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 Hartas

Details

AGLC: R v Hartas [2021] QCA 178
Case: [2021] QCA 178
Decision Date: 27 August 2021

CaseChat Overview and Summary

The case of R v Hartas involved an appeal against sentence where the applicant, who had set fire to two of his ex-partner's vehicles using a petrol bomb, was convicted on his own plea of one count of arson being a domestic violence offence and sentenced to three years’ imprisonment. The applicant argued that the psychological report regarding his personal background and mental condition was not appropriately considered by the sentencing judge, and that the parole release date was set in such a way as to make that part of the sentence unreasonable or plainly unjust.

The legal issues before the court were whether the sentencing judge had appropriately considered the psychological report, and whether the sentence was manifestly excessive. The court considered the relevance of mental health conditions to sentencing discretion and whether the matters in the psychological report had not been taken into account when sentencing. The court also examined whether the parole release date was set in such a way as to make that part of the sentence unreasonable or plainly unjust.

The court found that the sentencing judge had appropriately considered the psychological report and that the parole release date was not set in such a way as to make that part of the sentence unreasonable or plainly unjust. The court held that both grounds of appeal had not succeeded and refused the application for leave to appeal.

Application for leave to appeal refused.

Orders

Orders of the court

Application for leave to appeal 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

Sixthly, given those matters it is not possible to establish that the parole release date was set in such a way as to make that part of the sentence unreasonable or plainly unjust so as to justify an inference that there must have been a misapplication of principle.[28][28]Hili v The Queen (2010) 242 CLR 520 at [58]; R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [28].Conclusion As both grounds have not succeeded I propose the following order:1.Application for leave to appeal refused. APPLEGARTH J: I agree with the reasons of Morrison JA and with the proposed order.

Ratio Decidendi

Legal Principle Established

The psychologist also recommended that there be long term social skills training from a health profession and that his symptoms of traumatic stress and low mood “should probably be discussed with his doctor”. Further, clinical psychology was indicated.Consideration – Ground 1 Consideration of this ground, as well as ground 2 (the manifest excess ground) must commence with the fact that the application did not criticise the head sentence imposed. Counsel for the applicant contended that three years’ imprisonment was at the upper end of what might be within appropriate discretion, but did not seek to contend that a lower head sentence should have been imposed. Instead, the focus of the contentions was on reducing the parole release date from that which had been set (3 February 2022) to (effectively) immediate release on the day of the hearing. In respect of ground 1 it was contended that there was a long line of authority as to the relevance of mental health conditions to sentencing discretion. Particular reliance was placed on the decision in R v Tsiaras,[6] and the adoption of it in subsequent decisions including by this Court in R v Yarwood,[7] and the Victorian Court of Appeal in R v Verdins,[8] as establishing that serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways:(a)first, it may reduce the moral culpability of the offence, as distinct from the offender’s legal responsibility; in such a situation denunciation is less likely to be relevant;(b)secondly, the illness may have a bearing on the kind of sentence that is imposed, and any conditions under which it is to be served;(c)thirdly, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence;(d)fourthly, specific deterrence may be more difficult to achieve; and(e)finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person of normal health.[6][1996] 1 VR 398 at 400.[7](2011) 220 A Crim R 497.[8][2007] VSCA 102. Reliance was placed on Verdins where that Court held that the sentencing considerations identified above were not limited to cases of “serious psychiatric illness”, but included those where the offender was shown to be suffering at the time of the offence, or at the time of sentencing, “from a mental disorder or abnormality or impairment of mental function, whether or not the condition in question would properly be described as a (serious) mental illness”.[9][9]Verdins at [5]. The approach in Verdins has been adopted by this Court in R v Bowley:[10][10][2016] QCA 254 at [34]; internal citations omitted, see also R v William (a pseudonym) [2020] QCA 174 at [31]. The central contention advanced was that: (i) the learned sentencing judge stated that the sentence must reflect both specific and general deterrence, and that he found nothing in the report to justify further leniency;[11] (ii) this showed that the matters in the psychological report had not been taken into account when sentencing.[11]AB 29 lines 37-41.

CITATION:	R v Hartas [2021] QCA 178
PARTIES:	R v HARTAS, Corey James (applicant)
FILE NO/S:	CA No 30 of 2021 DC No 2254 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 3 February 2021 (East QC ADCJ)
DELIVERED ON:	27 August 2021
DELIVERED AT:	Brisbane
HEARING DATE:	28 July 2021
JUDGES:	Fraser and Morrison JJA and Applegarth J
ORDER:	Application for leave to appeal refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant set fire to two complainant’s vehicles using a petrol bomb – where the applicant was convicted on his own plea of one count of arson being a domestic violence offence – where the applicant was sentenced to three years’ imprisonment – where the applicant submitted a psychological report in respect of his personal background and mental condition – whether the learned sentencing judge appropriately considered the psychological report CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to three years’ imprisonment upon his own plea for an offence of arson being a domestic violence offence – where the parole release date was fixed at a date being 12 months from the date of sentence, taking into account eight days of pre-sentence custody – where the applicant contends that mitigating features were not appropriately taken into account in setting the parole date – whether the sentence was manifestly excessive R v Bowley (2016) 262 A Crim R 93; [2016] QCA 254, considered R v Tsiaras [1996] 1 VR 398; [1996] VicRp 26, considered
COUNSEL:	S E Harburg for the applicant D Nardone for the respondent
SOLICITORS:	Rostron Carlyle Rojas Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent