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 2015DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Southport – Unreported, 23 April 2015DELIVERED 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 madeORDERS:
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, discussedCOUNSEL:
L C Falcongreen for the applicant
S J Farnden for the respondentSOLICITORS:
Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent
HOLMES CJ: I agree with the reasons of Peter Lyons J and the orders he proposes.
PHILIP McMURDO J: I also agree with the reasons of Peter Lyons J and the orders he proposes.
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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- AGLC
- R v Lappan [2015] QCA 180
- Case
- [2015] QCA 180
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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