R v Lewis-Grant - [2015] QCA 252

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lewis-Grant [2015] QCA 252

PARTIES:

R
v
LEWIS-GRANT, Daryl James
(applicant)

FILE NO/S:

CA No 108 of 2015
DC No 226 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Townsville – Unreported, 21 May 2015

DELIVERED ON:

4 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

16 November 2015

JUDGES:

Fraser and Morrison JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application for leave to appeal is granted.

2.   The appeal is allowed.

3.   The order made on 21 May 2015, setting aside the parole eligibility date at 21 December 2015, is set aside and in lieu thereof the parole eligibility date is set at 4 December 2015.

4.   The orders made on 21 May 2015 are otherwise affirmed.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to a number of charges, including possessing child exploitation material; making child exploitation material; distributing child exploitation material; indecent treatment of a child under 16, under 12, under care; rape; and two summary charges of possession of cannabis and possession of a thing (a pipe) used in connection with smoking a dangerous drug – where the applicant seeks leave to appeal against his sentence on the ground that it is manifestly excessive – where the applicant was sentenced to concurrent terms of imprisonment amounting to seven years – where the applicant was 27 years of age and the complainant was four years of age at the time of the offending – where the applicant knew the complainant who would sometimes be under his care in his apartment – where the applicant performed sexual acts on the complainant and recorded the acts on his phone – where the applicant disposed of his phone – where the phone was discovered and the applicant was identified – where the phone contained sexually explicit images of children – where the complainant was identified in one of the photographs – where the police became involved and the applicant was arrested – where a second phone was seized and further sexually explicit images and videos of children were discovered – where the applicant submits the sentence was manifestly excessive because the learned trial judge failed to appropriately take into account the applicant’s plea of guilty – whether the sentence was manifestly excessive because comparable cases do not support seven years for the conviction of rape, even with the other charges taken into account

Penalties and Sentences Act 1992 (Qld), s 13(1)(a)

R v BBS[2009] QCA 205, considered
R v Bull[2012] QCA 74, considered
R v Choomwantha[2014] QCA 115, considered
R v D[2003] QCA 88, considered
R v M[2003] QCA 443, considered
R v Safi[2015] QCA 13, cited

COUNSEL:

J…

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 Lewis-Grant

Details

AGLC: R v Lewis-Grant [2015] QCA 252
Case: [2015] QCA 252
Decision Date: 4 December 2015

CaseChat Overview and Summary

In the case of R v Lewis-Grant, the applicant, Lewis-Grant, sought leave to appeal against his sentence, contending that it was manifestly excessive. Lewis-Grant had pleaded guilty to a series of serious charges, including possessing, making, and distributing child exploitation material, as well as indecent treatment of a child under 16 and rape. He was sentenced to concurrent terms of imprisonment totalling seven years. The applicant argued that the sentence was excessive, particularly given his guilty plea, and that comparable cases did not support such a lengthy sentence for rape, even when considering the other charges.

The legal issues before the court were whether the sentence imposed by the trial judge was manifestly excessive and whether the judge appropriately took into account the applicant's guilty plea. The court needed to determine if the sentence departed from the principle of proportionality and whether there were any errors in calculating the parole eligibility date.

The court found that while the sentence was indeed severe, it was not manifestly excessive when considering the nature and gravity of the offences committed. However, the court did identify an error in calculating the parole eligibility date. The trial judge had intended for Lewis-Grant to be eligible for parole after serving 28 months, but this date was incorrectly calculated. The correct date, taking into account the pre-sentence custody, should have been 4 December 2015 rather than 21 December 2015. Consequently, the court allowed the appeal solely in respect of the parole eligibility date and corrected it to 4 December 2015. The rest of the orders made on 21 May 2015 were affirmed.

In summary, the court granted the application for leave to appeal, allowed the appeal in respect of the parole eligibility date, and set the correct date at 4 December 2015, while affirming the rest of the orders.

Orders

Orders of the court

1. The application for leave to appeal is granted.

2. The appeal is allowed.

3. The order made on 21 May 2015, setting aside the parole eligibility date at 21 December 2015, is set aside and in lieu thereof the parole eligibility date is set at 4 December 2015.

4. The orders made on 21 May 2015 are otherwise affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Since his Honour intended that Lewis-Grant be eligible for parole after serving 28 months, and the pre-sentence custody was declared as time served, the 28 months should have been calculated from 4 August 2013. That would make 4 December 2015 the correct parole eligibility date.Conclusion. For the reasons given above I would allow the application for leave to appeal only in respect of the parole eligibility date. The orders I propose are:1.The application for leave to appeal is granted.2.The appeal is allowed.3.The order made on 21 May 2015, setting aside the parole eligibility date at 21 December 2015, is set aside and in lieu thereof the parole eligibility date is set at 4 December 2015.4.The orders made on 21 May 2015 are otherwise affirmed. BODDICE J: I have read the reasons for Judgment of Morrison JA. I agree with those reasons and the proposed orders.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Lewis-Grant [2015] QCA 252
PARTIES:	R v LEWIS-GRANT, Daryl James (applicant)
FILE NO/S:	CA No 108 of 2015 DC No 226 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Townsville – Unreported, 21 May 2015
DELIVERED ON:	4 December 2015
DELIVERED AT:	Brisbane
HEARING DATE:	16 November 2015
JUDGES:	Fraser and Morrison JJA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal is granted. 2. The appeal is allowed. 3. The order made on 21 May 2015, setting aside the parole eligibility date at 21 December 2015, is set aside and in lieu thereof the parole eligibility date is set at 4 December 2015. 4. The orders made on 21 May 2015 are otherwise affirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to a number of charges, including possessing child exploitation material; making child exploitation material; distributing child exploitation material; indecent treatment of a child under 16, under 12, under care; rape; and two summary charges of possession of cannabis and possession of a thing (a pipe) used in connection with smoking a dangerous drug – where the applicant seeks leave to appeal against his sentence on the ground that it is manifestly excessive – where the applicant was sentenced to concurrent terms of imprisonment amounting to seven years – where the applicant was 27 years of age and the complainant was four years of age at the time of the offending – where the applicant knew the complainant who would sometimes be under his care in his apartment – where the applicant performed sexual acts on the complainant and recorded the acts on his phone – where the applicant disposed of his phone – where the phone was discovered and the applicant was identified – where the phone contained sexually explicit images of children – where the complainant was identified in one of the photographs – where the police became involved and the applicant was arrested – where a second phone was seized and further sexually explicit images and videos of children were discovered – where the applicant submits the sentence was manifestly excessive because the learned trial judge failed to appropriately take into account the applicant’s plea of guilty – whether the sentence was manifestly excessive because comparable cases do not support seven years for the conviction of rape, even with the other charges taken into account Penalties and Sentences Act 1992 (Qld), s 13(1)(a) R v BBS[2009] QCA 205, considered R v Bull[2012] QCA 74, considered R v Choomwantha[2014] QCA 115, considered R v D[2003] QCA 88, considered R v M[2003] QCA 443, considered R v Safi[2015] QCA 13, cited
COUNSEL:	J…