R v Kaufman - [2018] QCA 12

[2018] QCA 12

COURT OF APPEAL

MORRISON JA
PHILIPPIDES JA
BODDICE J

CA No 150 of 2017
DC No 142 of 2016

THE QUEEN

KAUFMAN, Bradley Mark Applicant

BRISBANE

WEDNESDAY, 21 FEBRUARY 2018

JUDGMENT

BODDICE J: On 15 June 2017, the applicant pleaded guilty to one count of armed robbery. He was sentenced to imprisonment for five and a-half years. His parole eligibility date was set at 15 June 2017. The applicant seeks leave to appeal that sentence on the grounds it was manifestly excessive. The basis for that assertion is that the applicant had already served 797 days in pre-trial custody which, whilst not declarable, ought properly to have been taken into account in the fixing of the head sentence. The applicant submits that after taking that period of pre-sentence custody into account, he ought to have been sentenced to imprisonment for three years and four months.

The Crown accepts that the head sentence imposed on the applicant did not properly take into account the 797 days in pre-sentence custody. At issue is whether this Court, in re-exercising the sentencing discretion, ought to immediately suspend the sentence of imprisonment of three years and four months. The applicant was born on 24 February 1989. He was 26 years of age at the time of the offence. He is now 28 years of age. He has a not insignificant past criminal history. It includes offences for aggravated robbery and other offences of violence. He was on parole at the time of the commission of the offence for serious offences, including aggravated burglary and aggravated robbery with a weapon.

The applicant has previously served actual periods of imprisonment, both in the Australian Capital Territory and New South Wales. He has a longstanding addiction to drugs.

The offence of armed robbery was committed on 8 April 2015. The premises was that of a pharmacy. The applicant acted as a look-out whilst the principal offender disguised himself and used a 15-centimetre knife to intimidate a young pharmacist and shop assistant. Some 25 boxes of drugs and a quantity of cash was stolen in the robbery. The applicant then drove the getaway vehicle away from the scene. The sentencing judge took into account the applicant’s age, past criminal history, and his involvement in the offence.

The sentencing judge noted the need for deterrence in this type of offending. Considerations of both personal and general deterrence loomed large in the exercise of his sentencing discretion. After considering comparable authorities, the sentencing judge considered the appropriate sentence, having regard to the aggravating features, including the serious nature of the armed robbery, the fact it was committed whilst on parole and involved pre-meditation and a degree of sophistication, this warranted a significant head sentence notwithstanding the mitigating features of a plea of guilty which, although late, was timely.

The sentencing judge expressly noted that the applicant had already served 797 days in custody whilst on remand. Whilst that time was not declarable because it related to a…

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 Kaufman

Details

AGLC: R v Kaufman [2018] QCA 12
Case: [2018] QCA 12
Decision Date: 21 FEBRUARY 2018

CaseChat Overview and Summary

In the case of The Queen v Kaufman, the applicant, Bradley Mark Kaufman, sought leave to appeal against his sentence on the grounds that it was manifestly excessive. The applicant had pleaded guilty to one count of armed robbery and was sentenced to imprisonment for five and a half years, with parole eligibility set at the date of his plea. The applicant argued that the sentence failed to adequately account for the 797 days he had already served in pre-trial custody, and that the appropriate head sentence should have been three years and four months. The Crown conceded that the pre-sentence custody period should have been considered in determining the head sentence.

The key legal issue before the court was whether, in re-exercising the sentencing discretion, the sentence should be immediately suspended. The court noted the applicant's age, criminal history, and the serious nature of the offence, which involved pre-meditation and was committed while the applicant was on parole for serious offences. The court found that the original sentence of five and a half years imprisonment was an appropriate balance of the aggravating and mitigating factors, but that it failed to account for the pre-sentence custody period. This was a clear error in the exercise of the sentencing discretion, resulting in a manifestly excessive sentence.

The Court granted leave to appeal and allowed the appeal, setting aside the original sentence and imposing a new sentence of three years and four months imprisonment, with parole eligibility set at the date of the appeal hearing. The Court rejected the applicant's submission that the sentence should be suspended, finding that the applicant was not an appropriate candidate for a suspended sentence due to his criminal history and the need for community protection. The orders of the Court were as proposed by Justice Boddice.

Orders