R v Hayler

[2006] QCA 89

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hayler [2006] QCA 89

PARTIES:

R
v
HAYLER, Andrew Craig
(appellant/applicant)

FILE NO/S:

CA No 272 of 2005
DC No 173 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

29 March 2006

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2006

JUDGES:

Williams and Jerrard JJA and Fryberg J
Judgment of the Court

ORDERS:

Appeal against conviction dismissed;1.   

Grant leave to appeal against sentence and allow the appeal; 2.   

Set aside the original sentences imposed on 19 September 2005 as varied by the re-sentencing on 18 October 2005 and in lieu thereof sentence the applicant as follows:3.   

(a)  on the offence of stealing, 12 months imprisonment;

on the count of serious assault, imprisonment for 2 years;(b) 

such sentences to be served concurrently;(c)  

those sentences are to be suspended after serving 161 days with an operational period of 2 years;(d) 

declare that the applicant has already served 161 days in pre-sentence custody, namely the periods between 3 December 2003 and 13 April 2004 and between 19 September 2005 and 18 October 2005 and that is declared to be time already served under the sentence hereby imposed(e)  

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - where the applicant pleaded guilty to offences of stealing and serious assault - where the applicant had a poor criminal history and had spent many years in prison - where there was some material relevant to the initial sentencing that was not placed before the sentencing judge – where the sentence was later re-opened and the sentencing judge varied his original order – whether the sentence as varied was still manifestly excessive in all the circumstances

Penalties and Sentences Act 1992 (Qld), s 188

COUNSEL:

A W Moynihan for the appellant/applicant
L J Clare for the respondent

SOLICITORS:

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

1. THE COURT:  The applicant, who argued on his own behalf, seeks leave to appeal against a sentence imposed after he pleaded guilty to offences of stealing and serious assault.  After a consensual sexual encounter between the applicant, then aged 36, and the male complainant, then aged 76, the applicant assaulted the complainant by punching him, causing black eyes, a bruised forehead, a bruised and battered nose, and bruising to the ribs.  The applicant also then stole a gold necklace valued at $3,000. 

1. The pleas of guilty were entered in the District Court on 1 June 2005, and the matter was then stood over for sentence. The initial sentence was imposed on 19 September 2005.  The sentence then imposed was 12 months imprisonment for the stealing, and three and a half years imprisonment concurrent for the serious assault.  It was then ordered that these sentences be suspended after 15 months, with an operational period of five years.

1. The sentencing judge regarded as particularly relevant the fact that the applicant had a bad criminal history.  Of particular significance was a conviction on 20 October 1993 of one count of stealing with actual violence whilst armed with a dangerous weapon and then using personal violence, one count of stealing with actual violence whilst armed with a dangerous weapon, and one count of breaking and entering a dwelling house with intent.  He was then sentenced effectively to a term of nine years imprisonment.  Subsequent to serving that term, he has been convicted on 13 March 1996 and 26 March 1999 of serious assault on a police officer and serious assault.  On each occasion he was sentenced to three months imprisonment.  In addition he has other relatively minor drug and property related offences. 

1. In the course of his sentencing remarks the sentencing judge noted that the applicant had spent many years in prison and in institutions and that had undoubtedly affected his behaviour.

1. Unfortunately not all material relevant to the sentencing was placed before the court on that occasion. In consequence the sentence was re-opened pursuant to s 188 of the Penalties and Sentences Act 1992 (Qld) on 18 October 2005. It was clear that the sentence as originally structured could not stand. Given all of the material then placed before the court, and in the light of the fact that to that date the applicant had spent 161 days in custody with respect to the offences in question, the sentencing judge varied the original sentence by deleting the provision that it be suspended after serving 15 months and in lieu ordered that the sentence be suspended after 161 days which was declared to be time already spent in custody. That meant that the head sentence of three and a half years imprisonment remained and the operational period remained at five years.

1. It is from the sentence as varied that this application is now brought.

1. The Director of Public Prosecutions appeared for the respondent and conceded that the sentence could not be supported.  She conceded that, if all the material relevant to sentence had been placed before the court on the initial occasion, a lesser sentence would have been imposed. 

1. It is unfortunate that the sentencing proceedings took the course which they did.  The sentencing judge on the later occasion was placed in the invidious position of having to alter a sentence after having initially arrived at what he considered to be the appropriate sentence.  It was, in all the circumstances, difficult for the sentencing judge on the later occasion to approach the question of determining the appropriate sentence unaffected by his earlier determination, which was appropriate on the material that had then been placed before him.

1. As there was in the unusual circumstances a clear error in exercising the sentencing discretion, it falls to this Court to impose the appropriate sentence.  Having regard to all of the material, which of course includes the material placed before the court on 18 October 2005, the appropriate head sentence is two years imprisonment for the serious assault, suspended after the 161 days already served, with an operational period of two years. 

1. The appeal notice formally sought leave to appeal against conviction, although the issue was never raised on hearing. In the circumstances, the appeal against conviction is dismissed.

1. The orders of the Court should therefore be:

1.      Appeal against conviction dismissed;

2.      Grant leave to appeal against sentence and allow the appeal;

3.      Set aside the original sentences imposed on 19 September 2005 as varied by the re-sentencing on 18 October 2005 and in lieu thereof sentence the applicant as follows:

(a)    on the offence of stealing, 12 months imprisonment;

(b)    on the count of serious assault, imprisonment for 2 years;

(c)    such sentences to be served concurrently;

(d)    those sentences are to be suspended after serving 161 days with an operational period of 2 years;

(e)    declare that the applicant has already served 161 days in pre-sentence custody, namely the periods between 3 December 2003 and 13 April 2004 and between 19 September 2005 and 18 October 2005 and that is declared to be time already served under the sentence hereby imposed.