R v Lappan

Case [2015] QCA 180

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lappan [2015] QCA 180

PARTIES:

R
v
LAPPAN, Michael Harley
(applicant)

FILE NO/S:

CA No 86 of 2015
DC No 165 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:


District Court at Southport – Unreported, 23 April 2015

DELIVERED ON:

29 September 2015

DELIVERED AT:

Brisbane

HEARING DATE:

22 September 2015

JUDGES:

Holmes CJ and Philip McMurdo and Peter Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application granted.

2.   Treat the hearing of the application as the hearing of the appeal.

3.   Appeal allowed.

4.   For the sentence imposed in respect of count 1 substitute a sentence of three years’ imprisonment.

5.   Fix the applicant’s parole release date as at 29 September 2015.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where the applicant pleaded guilty to three counts of assaulting police officers in the execution of their duty, with circumstances of aggravation – where the applicant was sentenced to five years’ imprisonment for the most serious count, count 1 – where, in fixing the applicant’s parole eligibility date, the learned sentencing judge took into account 14 months of pre-sentence custody which could not be the subject of a declaration under s 159A of the Penalties and Sentences Act 1992 (Qld) – where the learned sentencing judge appeared to consider that the appropriate effect of the head sentence for count 1 was five years – where the effective head sentence for count 1 was six years and two months – whether the learned sentencing judge erred by failing to give effect to the non-declarable pre-sentence custody in relation to the effective head sentence – whether the head sentence of six years and two months’ imprisonment for count 1 was manifestly excessive

R v Benson[2014] QCA 188, discussed
R v Bidmade[2003] QCA 422, discussed
R v Braithwaite[2004] QCA 82, discussed
R v Devlyn[2014] QCA 96, discussed
R v Kazakoff ex parte Attorney-General (Qld)[1998] QCA 459, discussed
R v Marshall[2001] QCA 372, discussed
R v McCoy[2015] QCA 48, discussed
R v Murray[2014] QCA 250, cited
R v Taylor [2004] QCA 447, discussed
R v Taylor & Leigep[1997] QCA 159, discussed
R v Williams ex parte Attorney-General (Qld)[1997] QCA 476, discussed

COUNSEL:

L C Falcongreen for the applicant
S J Farnden for the respondent

SOLICITORS:

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

  1. HOLMES CJ:  I agree with the reasons of Peter Lyons J and the orders he proposes.

  2. PHILIP McMURDO J:  I also agree with the reasons of Peter Lyons J and the orders he proposes.

  3. PETER LYONS J: Having pleaded guilty to three counts of assaulting police officers in the execution of their duty, with circumstances of aggravation, the applicant was sentenced in a District…

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Details
AGLC
R v Lappan [2015] QCA 180
Case
[2015] QCA 180
Decision Date

CaseChat Overview and Summary

In the matter of R v Lappan, the applicant appealed against the sentence imposed by the trial judge, asserting that the sentence was manifestly excessive. The applicant had pleaded guilty to assaulting three police officers during the execution of their duties, with aggravating circumstances. The trial judge sentenced the applicant to five years in prison for the most serious count, with parole eligibility set at 18 months. However, the applicant argued that the trial judge had erred in not accounting for 14 months of pre-sentence custody when calculating the parole eligibility date. The applicant contended that this oversight resulted in an effective head sentence that was excessive.

The court examined whether the trial judge had erred in setting the parole eligibility date without considering the pre-sentence custody period that was not subject to a declaration under s 159A of the Penalties and Sentences Act 1992 (Qld). The court considered whether the effective head sentence of six years and two months was manifestly excessive, despite the early parole eligibility date. The court noted the applicant's extensive criminal history and the circumstances of the offence, which involved a stabbing incident causing significant physical and psychological harm to the victim. The court also took into account the applicant's background, which included drug addiction and a troubled upbringing.

The court concluded that the effective head sentence of six years and two months was indeed manifestly excessive, despite the early parole eligibility date. The court determined that the appropriate sentence on count 1 should have been four years and six months, with parole eligibility set at 18 months from the commencement of the sentence. Given that this outcome could no longer be achieved, the court substituted a sentence of three years for the original sentence on count 1 and fixed the parole release date as the date of the publication of the court's reasons. The court granted the application, treated the hearing of the application as the hearing of the appeal, and allowed the appeal. The court also ordered the substitution of the sentence and the fixing of the parole release date.

Orders

Orders of the court

1. Application granted.

2. Treat the hearing of the application as the hearing of the appeal.

3. Appeal allowed.

4. For the sentence imposed in respect of count 1 substitute a sentence of three years’ imprisonment.

5. Fix the applicant’s parole release date as at 29 September 2015.

Background

Background to the litigation

The first complainant provided a Victim Impact Statement and supplementary email[4]. He stated that he experienced intense pain as a result of the stabbing, and feared for his life. He collapsed to the ground. He was treated by a member of the Queensland Ambulance Service at the scene; and was medicated while being transported to the Gold Coast Hospital. For weeks subsequently, he was unable to sit comfortably due to the bruising and swelling; and he was concerned about having contracted a disease or infection until testing showed otherwise, apparently three months later. He also suffered nightmares in the period immediately after the accident, and was subject to outbursts of anger. He was left with a permanent scar, and continued to experience pain from the wound. He had about ten sessions of physiotherapy; and about six sessions of psychological counselling; in the period after the accident. He resumed counselling shortly prior to the sentence. Initially he remained off work for almost two months after the event; then was on light duties for about three months. It was difficult for him to return to work, and his attitude to continuing to serve in the Queensland Police Service has changed. He now avoids crowded places; and remains upset by the fact that he came to close to taking the applicant’s life when he drew his firearm.[4]R 47, 51.Applicant’s background and criminal history The applicant was 31 years of age at the time of the offences; and 33 years of age at the date of sentence, and currently. As the learned sentencing judge recorded[5], the applicant has had an unfortunate life. His parents, one of whom was indigenous, were drug addicts, and he lived on the streets of Sydney as a young child. Subsequently his grandparents cared for him, and sent him to school. He commenced drug use, and drinking alcohol in parks with friends, in his early teenage years[6]. The applicant has had a long standing amphetamine addiction[7].[5]R 24.[6]R 117.[7]R 121. The applicant has an extensive criminal history (in New South Wales), extending back to when he was 15 years of age. It includes drug related offences, property related offences, assaults, violence, stalking, and the contravention of a domestic violence order. Sentences have included probation, though in 2005 he was imprisoned for a period of 12 months, with a non-parole period of nine months; and in April 2008 he was sentenced to a period of periodic detention of 16 months, for an assault with intent to take or drive a motor vehicle. From about the middle of 2008 to about the beginning of 2013, his offending could be described as low level property offending; though on 7 January 2013 warrants issued in relation to an offence of assault occasioning bodily harm and a shoplifting offence.Sentencing proceedings After recording the relevance of the applicant’s pleas of guilty, and describing the circumstances of the offending, the learned sentencing judge referred to the applicant’s background, summarised previously. With respect to the applicant’s mental state at the time of the offending, his Honour observed that the applicant “voluntarily ingested the drugs, so it’s no excuse for what you did”[8]. The learned sentencing judge noted the positive steps which the applicant had taken to rehabilitate himself, by attending a number of programmes, and taking opportunities to improve his physical and mental well-being. He had abstained from drugs, and was motivated to undergo further treatment for drug rehabilitation. The plea was an early plea.[8]R 24.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Were it necessary to decide, I would conclude that the effective head sentence of six years and two months was manifestly excessive, notwithstanding the early parole eligibility date.Conclusion As I have indicated, I consider that the application should be granted, the hearing of the application be treated as the hearing of the appeal, and the appeal allowed. I consider that the appropriate sentence on count 1 was a term of imprisonment of four years and six months; with the parole eligibility date 18 months from the commencement of the sentence. Both periods should be adjusted for the time spent in custody prior to sentence. That would result in the imposition of a sentence of three years and four months. The appropriate parole eligibility date would have been 23 August 2015. Since this result is no longer achievable, it seems to me appropriate to substitute a sentence of three years for the sentence originally imposed for count 1; and fix, as the parole release date, the date of the publication of this Court’s reasons. In view of the way the application has been argued, there is no reason to consider a variation of the sentences imposed for the other counts. Accordingly I would order as follows:-(a)Application granted.(b)Treat the hearing of the application as the hearing of the appeal.(c)Appeal allowed.(d)For the sentence imposed in respect of count 1 substitute a sentence of three years’ imprisonment.(e)Fix the applicant’s parole release date as the date on which the Court publishes its decision on the application.

Ratio Decidendi

Legal Principle Established

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