R v Lilley

Case [2021] QCA 52

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lilley [2021] QCA 52

PARTIES:

R
v
LILLEY, Jak
(applicant)

FILE NO/S:

CA No 108 of 2020
DC No 58 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns – Date of Sentence: 18 May 2020 (Fantin DCJ)

DELIVERED ON:

Date of Orders: 24 March 2021
Date of Publication of Reasons: 26 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

24 March 2021

JUDGES:

Sofronoff P and Boddice J and Rafter AJ

ORDERS:

Orders delivered: 24 March 2021

1.   Application for leave to appeal against sentence refused.

2.   Direct that the Registrar issue an amended verdict and judgment record to reflect that the sentencing judge was Judge Fantin and not Judge Morzone QC.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to six years’ and six months’ imprisonment – where the applicant pleaded guilty to: threatening violence, in the night; burglary, by breaking, with violence, while armed; malicious act with intent; assault occasioning bodily harm, while armed; and stealing – where the applicant broke into the complainant’s house, stole a painting and inflicted serious injuries with a machete and a knife – where the applicant submitted that there was nothing in the sentencing judge’s remarks to indicate that the head sentence was moderated in recognition of the pleas of guilty – where the applicant submitted that offences were out of character – where the applicant’s drug usage contributed to his offending– where the respondent submitted that the sentence imposed does not differ significantly from comparable cases so as to give rise to a conclusion that there must have been a misapplication of principle – where the sentencing judge set the parole eligibility date after the period of 30 months rather than at the one third point of 26 months –  where the sentencing judge imposed the sentence to reflect the overall criminality in the offending – whether the parole eligibility date after 30 months rendered the sentence manifestly excessive

R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80; [2020] QCA 58, cited
R v Granato[2006] QCA 25, cited
R v Hitchcock[2019] QCA 60, cited
R v Ma’afu[2016] QCA 67, cited
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited
R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited

COUNSEL:

N Weston for the applicant
D Nardone for the respondent

SOLICITORS:

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

  1. SOFRONOFF P:  I agree with the reasons of Rafter AJ and with the order and direction proposed.

  2. BODDICE J:  I agree with Rafter AJ.

  3. RAFTER AJ:  On 18 May 2020 the applicant pleaded guilty to threatening violence in the night (count 1); burglary, by breaking, with violence, while armed (count 2); malicious act with intent (count…

Continue reading R v Lilley

Sign in free to access the full text

Details
AGLC
R v Lilley [2021] QCA 52
Case
[2021] QCA 52
Decision Date

CaseChat Overview and Summary

In the case of R v Lilley, the applicant sought leave to appeal against the sentence imposed by the trial judge. The applicant was sentenced to six years and six months imprisonment for multiple serious offences, including burglary, assault occasioning bodily harm, and threatening violence. The appeal was based on the contention that the sentence was manifestly excessive, particularly in light of the parole eligibility date being set after 30 months instead of at the one third point of 26 months. The respondent argued that the sentence was within the range of comparable cases and did not warrant interference.

The central legal issue was whether the sentence imposed by the trial judge was manifestly excessive or inadequate. The applicant argued that the sentence did not adequately reflect the mitigating factors such as the applicant's pleas of guilty and the fact that the offences were out of character. The applicant also contended that drug use had contributed to the offending. The respondent maintained that the sentence was proportionate and did not represent a misapplication of principle, pointing to comparable cases that supported the appropriateness of the sentence.

The court found that the sentence of six and a half years' imprisonment with parole eligibility after two and a half years was not manifestly excessive. The court noted that the sentencing judge had correctly considered the overall criminality of the offending and the need for punishment, denunciation, deterrence, and community protection. The court highlighted that the decision in R v Free; Ex parte Attorney-General (Qld) confirmed that a sentencing judge is not bound by convention when setting parole eligibility dates, and that a serious violent offender declaration is not mandatory. The court also rejected the applicant's argument that the sentence was at the upper end of the applicable range, citing the cases of R v Granato and R v Ma'afu as evidence that the present sentence was not excessive.

In conclusion, the application for leave to appeal against sentence was refused. The court also ordered that the verdict and judgment record be amended to correctly identify the sentencing judge as Judge Fantin, not Judge Morzone QC. The orders delivered on 24 March 2021 reflect the court's decision to uphold the sentence and correct the clerical error in the record.

Orders

Orders of the court

Orders delivered: 24 March 2021

1. Application for leave to appeal against sentence refused.

2. Direct that the Registrar issue an amended verdict and judgment record to reflect that the sentencing judge was Judge Fantin and not Judge Morzone QC.

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

The total sentence of six and a half years’ imprisonment with a parole eligibility date after two and a half years is not manifestly excessive. The decision in R v Free; Ex parte Attorney-General (Qld)[11] shows that where a sentencing judge considers that a serious violent offender declaration is not warranted, it is wrong to automatically fix a parole eligibility date after one third of the head sentence. The Court said:“[55] We are also persuaded that the sentencing discretion was affected by a second error, which arose because the learned sentencing judge moved directly from the conclusion about the serious violent offender declaration, to a conclusion that parole eligibility after the ‘conventional’ one-third was appropriate, without considering the overall effect of that conclusion, and whether there were factors (including punishment, denunciation, deterrence and community protection) favouring a later release date. The discretion to fix a parole eligibility date is unfettered; and there can be no mathematical approach to fixing that date, including on the basis of convention.”[11](2020) 4 QR 80.Conclusion and orders For the reasons given, the application for leave to appeal against sentence should be refused. The verdict and judgment record incorrectly states that the sentencing judge was Judge Morzone QC. I would direct that the Registrar issue an amended verdict and judgment record to reflect that the sentencing judge was Judge Fantin. I propose the following orders:1.Application for leave to appeal against sentence is refused.2.Direct that the Registrar issue an amended verdict and judgment record to reflect that the sentencing judge was Judge Fantin and not Judge Morzone QC.

Ratio Decidendi

Legal Principle Established

The respondent submits that the sentence in R v Granato[2] of five years’ imprisonment with a recommendation for post-prison community-based release after 21 months does not mark the upper limit of the sentencing discretion. It was also submitted that the sentence in R v Ma’afu[3] of seven years’ imprisonment with a parole eligibility date after three years supported the contention that the present sentence is not manifestly excessive.[2][2006] QCA 25.[3][2016] QCA 67.Consideration The applicant’s submissions proceed upon the erroneous premise that the sentence in R v Granato[4] places the present sentence of six and a half years’ imprisonment with parole eligibility after two and a half years at “the upper end of the applicable range.”[4][2006] QCA 25. In R v Granato, the applicant pleaded guilty to burglary and malicious act with intent. The applicant was 33 years of age at the time of the offences and had no relevant prior criminal history. He was sentenced to five years’ imprisonment with a recommendation for post-prison community-based release after 21 months. The applicant and the complainant had known each other for some time. They had a falling out and in a confrontation the complainant lost his temper and punched the applicant. The offences occurred a week later when the applicant, accompanied by two other men, entered the complainant’s dwelling. The complainant was asleep in bed. The applicant struck the complainant all over his body with a baton. One of the other offenders used a baseball bat to strike the complainant. The complainant suffered a fractured skull, a small pneumothorax and lung contusions, and a compound fracture of the little finger. In refusing the application for leave to appeal against sentence, de Jersey CJ said that “notwithstanding the applicant’s pleas of guilty, his lack of history, and the references in his favour, a term at least of the order of that imposed was, in my view, appropriate.” In R v Ma’afu[5], a sentence of seven years’ imprisonment with a parole eligibility date after three years imposed for grievous bodily harm with intent was held not to be manifestly excessive. The applicant drank excessively at a New Year’s Eve party and proceeded to commit three offences involving escalating levels of violence. He slapped a 14 year old child after a minor verbal altercation (common assault). The applicant eventually caught a cab home but left his wallet at the party and needed to return. When the cab driver told him that it would cost him another $20 each way, he punched the cab driver in the face. The cab driver suffered bruising on the left cheek and a swollen left eye (assault occasioning bodily harm). After the cab driver left, the applicant retrieved a machete from the back of his house and walked down the street, yelling out. A nearby resident confronted the applicant. The applicant swung the machete at the complainant but missed. The applicant and the complainant wrestled over the machete, during which the complainant grabbed the blade to stop it being used on him. This resulted in his hands being cut deeply. During the incident the applicant struck the complainant on the left shoulder with the machete, causing a deep laceration. The complainant’s injuries required surgical repair in an attempt to avoid permanent loss of function in the affected fingers, thumb and shoulder. The applicant had a minor and largely irrelevant criminal history.[5][2016] QCA 67.