R v Howell - [2021] QCA 89

SUPREME COURT OF QUEENSLAND

CITATION:

R v Howell [2021] QCA 89

PARTIES:

R
v
HOWELL, Ricky James
(applicant)

FILE NO/S:

CA No 305 of 2019
DC No 2286 of 2019
DC No 2570 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 15 November 2019 (Richards DCJ)

DELIVERED ON:

5 May 2021

DELIVERED AT:

Brisbane

HEARING DATE:

20 November 2020

JUDGES:

Fraser and McMurdo JJA and Henry J

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to eight years imprisonment for a number of offences – where the primary judge imposed a cumulative sentence – whether the primary judge used, and misapplied, the Nagy principle such that the applicant was punished twice

R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered

COUNSEL:

M J Jackson for the applicant
S Bain for the respondent

SOLICITORS:

Owens & Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with McMurdo JA’s reasons and the order proposed by his Honour.
McMURDO JA: On 15 November 2019, the applicant was sentenced in the District Court for a number of offences, resulting in a period of imprisonment of eight years with a parole eligibility date after three and a half years. A total of 305 days was declared as presentence custody.
The applicant was convicted of one of the offences after a trial. That offence was armed robbery in company, committed on 31 December 2018, in which the applicant wounded the victim. For that offence, he was sentenced to a term of five years’ imprisonment. He makes no challenge to that sentence.
At the same time, the applicant was sentenced for an offence on another indictment, together with two summary offences. That other indictable offence was committed on 14 January 2019, when he and another person entered a dwelling and stole various items, including a laptop, computer equipment, a wallet and its contents, a jewellery box and its contents and a camera.
The summary offences were committed in March and May 2018 and were, respectively, an offence of threatening violence and one of wilful damage to property. For each of those summary offences, he was sentenced to a term of 12 months imprisonment, to be served concurrently with the five year term. He makes no challenge to those sentences.
The applicant’s challenge is to the sentence for the burglary and stealing offence committed in 2019, which was one of three years’ imprisonment to be served cumulatively upon the five year term. The stated ground of his proposed appeal is that the sentence is manifestly excessive. However, it is also argued that there was an identifiable error in the judge’s reasoning, in that her Honour effectively increased that sentence for the fact that the applicant…

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 Howell

Details

AGLC: R v Howell [2021] QCA 89
Case: [2021] QCA 89
Decision Date: 5 May 2021

CaseChat Overview and Summary

In the case of R v Howell, the applicant, a convicted individual, sought to appeal against the sentence imposed by the primary judge. The applicant had been found guilty of several offences and was sentenced to a total of eight years imprisonment. The sentence was imposed cumulatively, which means the sentences for each offence were added together. The applicant's primary contention was that the primary judge had misapplied the principle from Nagy v R, thereby resulting in a sentence that was excessively harsh.

The court was required to determine whether the primary judge had indeed misapplied the Nagy principle, leading to an excessive or inadequate sentence. The Nagy case established that a cumulative sentence could be appropriate if the offences were sufficiently serious and warranted such treatment. However, the court had to examine whether the primary judge had correctly applied this principle or if there had been a misuse that resulted in the applicant being punished twice for the same conduct.

In assessing the applicant's arguments, the court examined the nature and seriousness of the offences, the cumulative sentence, and the application of the Nagy principle. The court found that the primary judge had correctly applied the principles established in Nagy and had considered the appropriate factors in determining the sentence. Consequently, the court concluded that the sentence was neither manifestly excessive nor inadequate. The court held that there was no basis to interfere with the sentence imposed by the primary judge.

The application for leave to appeal against sentence is refused.

Orders

Orders of the court

The application for leave to appeal against sentence is 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

Full text does not contain this section.

CITATION:	R v Howell [2021] QCA 89
PARTIES:	R v HOWELL, Ricky James (applicant)
FILE NO/S:	CA No 305 of 2019 DC No 2286 of 2019 DC No 2570 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 15 November 2019 (Richards DCJ)
DELIVERED ON:	5 May 2021
DELIVERED AT:	Brisbane
HEARING DATE:	20 November 2020
JUDGES:	Fraser and McMurdo JJA and Henry J
ORDER:	The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to eight years imprisonment for a number of offences – where the primary judge imposed a cumulative sentence – whether the primary judge used, and misapplied, the Nagy principle such that the applicant was punished twice R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered
COUNSEL:	M J Jackson for the applicant S Bain for the respondent
SOLICITORS:	Owens & Associates for the applicant Director of Public Prosecutions (Queensland) for the respondent