R v Kussrow - [2018] QCA 195

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kussrow [2018] QCA 195

PARTIES:

R
v
KUSSROW, Justin Benjamin
(applicant)

FILE NO/S:

CA No 280 of 2017
DC No 945 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 1 November 2017 (Farr SC DCJ)

DELIVERED ON:

24 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

1 May 2018

JUDGES:

Gotterson and Philippides JJA and Daubney J

ORDERS:

1.   Grant leave to appeal against sentence.

2.   Appeal allowed.

3.   The appellant’s sentence is varied by substituting 5 June 2021 as the parole eligibility date.

4.   The sentence is otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to unlawfully doing grievous bodily harm – where the applicant and the complainant were in custody at the Wacol Correctional Centre at the time of the applicant’s offending – where the applicant was serving a sentence of six years’ imprisonment at the time of his offending – where the Penalties and Sentences Act 1992 (Qld) (“PSA”) required the applicant’s sentence to be imposed cumulatively upon the sentence that he was already serving – where the applicant was sentenced to six years’ imprisonment with a requirement that half of that term be served – where, cumulatively, the applicant’s sentence was 12 years’ imprisonment with eligibility for parole after nine years – where the applicant applied for leave to appeal against his sentence on the ground that it is manifestly excessive – where the applicant attributed the manifest excess, inter alia, to a failure of the sentencing judge to adequately take into account s 9(2)(l) of the PSA which requires a sentencing court to have regard to “sentences already imposed on the offender that have not been served” – whether the sentencing judge failed to adequately take into account s 9(2)(l) of the PSA – whether the applicant’s sentence is manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(2)(l)

R v Amery[2011] QCA 383, considered
R v BCF[2012] QCA 87, distinguished
R v Compton [2017] 2 Qd R 586; [2017] QCA 55, considered
R v Davidson, unreported, District Court of Queensland, Dearden J, DC No 659 of 2017, 23 October 2017, distinguished
R v Holland[2008] QCA 200, considered
R v Lowe [2001] QCA 270, considered

COUNSEL:

D Holliday for the applicant
M Wilson for the respondent

SOLICITORS:

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

GOTTERSON JA: On 1 November 2017, the applicant, Justin Benjamin Kussrow, pleaded guilty in the District Court at Brisbane to an offence against ss 317(b) and (e) of the Criminal Code (Qld). The count to which he pleaded alleged that on 27 May 2016 at Wacol, he unlawfully did grievous bodily harm to Daniel Christopher Lawrence with intent to do so.
This offending…

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 Kussrow

Details

AGLC: R v Kussrow [2018] QCA 195
Case: [2018] QCA 195
Decision Date: 24 August 2018

CaseChat Overview and Summary

The case of R v Kussrow involved the applicant, who had pleaded guilty to committing grievous bodily harm while in custody at the Wacol Correctional Centre. The applicant was already serving a six-year sentence at the time of the offence. The court sentenced the applicant to an additional six years' imprisonment, with half of that term to be served, resulting in a cumulative sentence of twelve years with eligibility for parole after nine years. The applicant sought leave to appeal against his sentence, arguing it was manifestly excessive and that the sentencing judge had failed to properly consider the requirement under section 9(2)(l) of the Penalties and Sentences Act 1992 (Qld) to account for unserved sentences already imposed.

The primary legal issues before the court were whether the sentencing judge adequately considered the applicant's existing unserved sentence and whether the sentence imposed was manifestly excessive. The applicant contended that the failure to adequately account for his unserved sentence contributed to the manifest excess of his overall sentence. The court was required to determine whether the sentence was proportionate and whether the sentencing judge's approach was legally sound.

In granting leave to appeal and allowing the appeal, the court found that the sentencing judge had not adequately considered the existing unserved sentence. The court held that this omission contributed to the manifest excess of the sentence. The court noted that the sentencing judge should have imposed the additional sentence cumulatively, with the parole eligibility date adjusted accordingly. Consequently, the court varied the parole eligibility date to 5 June 2021, while confirming the sentence in all other respects. This adjustment addressed the identified legal error and ensured the sentence was proportionate.

Orders

Orders of the court

1. Grant leave to appeal against sentence.

2. Appeal allowed.

3. The appellant’s sentence is varied by substituting 5 June 2021 as the parole eligibility date.

4. The sentence is otherwise confirmed.

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 Kussrow [2018] QCA 195
PARTIES:	R v KUSSROW, Justin Benjamin (applicant)
FILE NO/S:	CA No 280 of 2017 DC No 945 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 1 November 2017 (Farr SC DCJ)
DELIVERED ON:	24 August 2018
DELIVERED AT:	Brisbane
HEARING DATE:	1 May 2018
JUDGES:	Gotterson and Philippides JJA and Daubney J
ORDERS:	1. Grant leave to appeal against sentence. 2. Appeal allowed. 3. The appellant’s sentence is varied by substituting 5 June 2021 as the parole eligibility date. 4. The sentence is otherwise confirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to unlawfully doing grievous bodily harm – where the applicant and the complainant were in custody at the Wacol Correctional Centre at the time of the applicant’s offending – where the applicant was serving a sentence of six years’ imprisonment at the time of his offending – where the Penalties and Sentences Act 1992 (Qld) (“PSA”) required the applicant’s sentence to be imposed cumulatively upon the sentence that he was already serving – where the applicant was sentenced to six years’ imprisonment with a requirement that half of that term be served – where, cumulatively, the applicant’s sentence was 12 years’ imprisonment with eligibility for parole after nine years – where the applicant applied for leave to appeal against his sentence on the ground that it is manifestly excessive – where the applicant attributed the manifest excess, inter alia, to a failure of the sentencing judge to adequately take into account s 9(2)(l) of the PSA which requires a sentencing court to have regard to “sentences already imposed on the offender that have not been served” – whether the sentencing judge failed to adequately take into account s 9(2)(l) of the PSA – whether the applicant’s sentence is manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9(2)(l) R v Amery[2011] QCA 383, considered R v BCF[2012] QCA 87, distinguished R v Compton [2017] 2 Qd R 586; [2017] QCA 55, considered R v Davidson, unreported, District Court of Queensland, Dearden J, DC No 659 of 2017, 23 October 2017, distinguished R v Holland[2008] QCA 200, considered R v Lowe [2001] QCA 270, considered
COUNSEL:	D Holliday for the applicant M Wilson for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent