SUPREME COURT OF QUEENSLAND
CITATION:
R v Lewis; Ex parte Attorney-General (Qld) [2022] QCA 14
PARTIES:
R
v
LEWIS, Brae Taylor
(respondent)
EX PARTE
ATTORNEY-GENERAL OF QUEENSLAND
(appellant)FILE NO/S:
CA No 25 of 2021
DC No 1820 of 2017DIVISION:
Court of Appeal
PROCEEDING:
Sentence Appeal by Attorney-General (Qld)
ORIGINATING COURT:
District Court at Brisbane – Date of Sentence: 14 January 2021 (Burnett DCJ)
DELIVERED ON:
Date of Order: 2 June 2021
Date of Publication of Reasons: 15 February 2022DELIVERED AT:
Brisbane
HEARING DATE:
2 June 2021
JUDGES:
Sofronoff P and Morrison JA and Flanagan J
ORDER:
Order delivered: 2 June 2021
Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent was convicted after a plea of guilty to a malicious act with intent being a domestic violence office – where the respondent and complainant were both aged 17 at the time of the offence – where the respondent threw fuel onto the complainant and ignited fumes causing the complainant to become engulfed in flames – where the complainant suffered burns to 21 per cent of her body – where the respondent was sentenced to nine and a half years imprisonment – where the sentence imposed did not include a serious violent offence declaration – where the Attorney-General appeals on the grounds that the learned sentencing judge erred in failing to declare that the defendant had been convicted of a serious violent offence and that the sentence imposed was manifestly inadequate – whether the sentence imposed was manifestly inadequate
R v Free; Ex parte Attorney-General(Qld) (2020) 4 QR 80; [2020] QCA 58, considered
R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, considered
R v Wentworth[1996] QCA 534, considered
R v Williams[2002] QCA 142, considered
R v Woodman[2009] QCA 197, consideredCOUNSEL:
J W Wooldridge QC, with D Kovac, for the appellant
S J Hamlyn-Harris and J C Johnsen for the respondentSOLICITORS:
Director of Public Prosecutions (Queensland) for the appellant
Legal Aid Queensland for the respondent
SOFRONOFF P: I agree with the reasons of Morrison JA.
MORRISON JA: The respondent (Lewis) had a troubled relationship with his girlfriend (PAM) in about 2016. Each were users of methylamphetamine and whilst they had been in an intimate relationship for about two years, that relationship was characterised by domestic violence involving physical fights.
Two incidents, in particular, preceded the events of 27 May 2016. The first was at the start of 2016. Lewis and PAM were both affected by methylamphetamine and became involved in an argument. Lewis told her he was going to set her on fire. He threw a jerrycan of petrol at her during that argument. The lid of the can was not properly secure and as a result petrol landed on her shirt.
The second occurred about one week prior to…
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- AGLC
- R v Lewis; Ex parte [2022] QCA 14
- Case
- [2022] QCA 14
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the sentence imposed by the sentencing judge was manifestly inadequate. The appeal hinged on whether the sentencing judge gave too much weight to the factors of insight and remorse when compared to the objective seriousness of the offending. The sentencing judge took into account several factors in determining the sentence, including the late plea of guilty, Lewis' age and maturity at the time of the offence, his drug-addicted state, his post-offending conduct, and his letter of remorse. The sentencing judge found that Lewis had insight into the intent underlying the offence and that his expression of remorse was authentic.
The court held that the findings of the sentencing judge were open to him and that the appeal should be dismissed. The court found that the sentencing judge appropriately balanced the mitigating factors with the objective seriousness of the offending. The court also noted that Lewis had been waiting for five years for his sentence to be finally determined, which was a particularly significant period of time in view of his age. The court exercised its residual discretion to dismiss the appeal.
ORDERS:
The appeal was dismissed on 2 June 2021.
Orders
Orders of the court
Order delivered: 2 June 2021
Appeal dismissed.
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
It was also submitted that this was a case where, even if this Court determined that there had been some error by the learned sentencing judge, it should exercise the residual discretion[36] to dismiss the appeal. In that respect it was submitted that Lewis had now been waiting for five years for his sentence to be finally determined and that was a particularly significant period of time in view of his age.[36]Identified in CMB v Attorney-General (NSW) (2015) 256 CLR 346 at 365 and 366; [2015] HCA 9 at [54] and [56].Consideration The sentencing judge recognised that the plea of guilty was a late plea. Of course that was so, given that it followed a trial at which a plea of not guilty had been entered to that charge, an appeal challenging his conviction where the question of intent was in issue, and the subsequent abortive listing of the retrial. Nonetheless, the sentencing judge considered that he should give the plea of guilty some recognition. In doing so his Honour rejected a contention that the late plea demonstrated a lack of remorse, and his Honour took into account a number of factors, including:[37](a)the fact that the delay caused by the COVID lockdown “would have played significantly into the sentence, perhaps making any victory at trial somewhat the pyrrhic”;(b)the age and maturity of Lewis at the time of the offending which was, in his Honour’s view, “a matter which, no doubt, would have informed his approach to matters”;(c)his drug addicted state at the time of the offending, “which would have impacted his capacity to think clearly about these matters”;(d)the fact that the post-offending conduct “plainly indicated that he had some appreciation of the moment of the event that had just occurred”; and(e)the fact that his later behaviour could, to some extent, be interpreted as the reaction of someone who was immature.[37]AB 54 line 37 to AB 55 line 12. The sentencing judge also took into account the letter of remorse. His Honour was well aware that allowance had to be made for the fact that the letter had been written two years after the event, was in some respects self-serving, and written by someone on remand. Balanced against that, however, was the fact that when it was written Lewis was in a drug-free state, and the response was one which reflected his disadvantaged and inadequate upbringing. His Honour carefully noted the contents of the letter of apology and, in the light of the psychologist’s report which indicated an improvement into his insight, formed the conclusion that Lewis did have insight in respect of the aspect of the intent underlying count 3, and the expression of remorse was authentic.[38][38]AB 55 lines 34-38. In my respectful view, it cannot be maintained that those findings were not open to the learned sentencing judge. In truth, though her response was couched more carefully, Ms Wooldridge QC effectively conceded that was the case. The contest was then whether too much weight had been given to the factors of insight and remorse when compared to the objective seriousness of the offending.