SUPREME COURT OF QUEENSLAND
CITATION:
R v Liu [2016] QCA 186
PARTIES:
R
v
LIU, Jia-Qing
(applicant)FILE NO/S:
CA No 122 of 2016
DC No 785 of 2016DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Brisbane – Date of Sentence: 5 May 2016DELIVERED ON:
18 July 2016
DELIVERED AT:
Brisbane
HEARING DATE:
14 July 2016
JUDGES:
Fraser and Philippides JJA and Burns J
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
The application for leave is refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was convicted on his own plea of one count of dangerous operation of a vehicle causing death – where the applicant was sentenced to two years imprisonment, suspended after three months, and with an operational period of three years – where the applicant contended that the sentencing judge erred in adopting, on a plea of guilty, a starting point of six to eight months actual imprisonment prior to consideration of mitigation – whether the exercise of the sentencing discretion miscarried
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his own plea of one count of dangerous operation of a vehicle causing death – where the applicant was sentenced to two years imprisonment, suspended after three months, and for an operational period of three years – whether the sentence was manifestly excessive
R v Allen[2012] QCA 259, cited
R v Boubaris[2014] QCA 199, considered
R v Damrow[2009] QCA 245, cited
R v Gruenert; Ex-parte Attorney-General (Qld)[2005] QCA 154, cited
R v Hart[2008] QCA 199, cited
R v Hopper; Ex-parte Attorney-General (Qld) [2015] 2 Qd R 56; [2014] QCA 108, cited
R v Kohler [2010] QDC 502, cited
R v MacDonald (2014) 244 A Crim R 148; [2014] QCA 9, cited
R v Maher[2012] QCA 7, considered
R v Murphy[2009] QCA 93, cited
R v Osborne[2014] QCA 291, cited
R v Towers[2009] QCA 159, citedCOUNSEL:
B J Power for the applicant
D Nardone for the respondentSOLICITORS:
Fisher Dore Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent
FRASER JA: I agree with the reasons for judgment of Philippides JA and the order proposed by her Honour.
PHILIPPIDES JA: The applicant seeks leave to appeal against sentence imposed on 5 May 2016, on his conviction on a guilty plea, of one count of dangerous operation of a vehicle causing death. The applicant was sentenced to a period of two years imprisonment, suspended after three months, for an operational period of three years and disqualified from holding or obtaining a driver’s licence in Queensland for a period of three…
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- AGLC
- R v Liu [2016] QCA 186
- Case
- [2016] QCA 186
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the sentencing judge erred in adopting a particular starting point and if the sentence was manifestly excessive. The court noted that the applicant did not argue that the head sentence was outside the proper scope of a sound exercise of discretion. The court held that the sentencing judge did not state any particular starting point and that the judge had made proper consideration of mitigating factors and the early plea of guilty, which justified the suspension after a short period of custody. The court also noted that there is no norm for the timing of the suspension relative to the duration of the head sentence.
The application for leave to appeal was refused. The court found no error in the sentencing proceedings that would justify the exercise of the sentencing discretion afresh.
Orders
Orders of the court
The application for leave is refused.
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
The application for leave was brought on the basis of two grounds of appeal. The first ground was that the sentence was manifestly excessive with regard to the period of actual custody imposed. The second ground was that the starting point of six to eight months imprisonment, on a plea of guilty, adopted by the sentencing judge prior to consideration of mitigation caused the exercise of the sentencing discretion to miscarry, so that the sentencing discretion was required to be exercised afresh. The applicant contended that the sentence imposed ought to be varied by ordering that the sentence be suspended at the date of the appeal hearing (at which time he had served two months and ten days imprisonment).Consideration of Grounds of Appeal It is to be noted that the applicant did not contend that the head sentence was outside the proper scope of a sound exercise of a discretion. At sentence counsel for the applicant had advocated for a head sentence of between 18 months and two and a half years imprisonment. It was also accepted by the applicant’s counsel that the wide sentencing discretion reflected in the comparable authorities made the first ground of appeal as to the custodial term very difficult to argue. It was further conceded in that regard that counsel’s concession at sentence was relevant. That concession was that, notwithstanding the submission that a wholly suspended sentence was urged as appropriate, it could not be said that there was binding authority that required such an outcome. The applicant’s primary argument therefore was that, based on the objective level of seriousness of offending in this case, the learned sentencing judge “erred in finding that six to eight months of actual imprisonment was the ordinarily appropriate starting point on a plea of guilty before consideration of personal mitigation”. The applicant’s contention was thus that the sentencing judge improperly imposed the sentence from a starting point of two years imprisonment suspended after six to eight months. I accept the respondent’s contention that the applicant's reading of the sentencing Judge's remarks is erroneous. Nowhere in his Honour's remarks did he state that the exercise of the discretion began from any particular starting point. His Honour's reference to “ordinarily” may be understood, as the respondent submitted, as highlighting that the court had made a proper consideration of and made substantial allowance for, the relevant mitigating features, as well as the early plea of guilty, to explain the justification for a suspension after only a short period of custody, that is at one eighth of the head sentence. Ground 2 is thus not made out. There was no error in the sentencing proceedings justifying the exercise of the sentencing discretion afresh. As was stated in R v Osborne [2014] QCA 291 at [46] by Henry J (with whom Holmes JA and McMeekin J agreed), in respect of the timing of a suspension of a sentence:“[It] should not be pre-determined arithmetically for the same reason there should not be a judicially determined sentencing starting point for the duration of imprisonment prior to parole or a parole eligibility date. Nor do the cases suggest the existence of a norm for the timing of the suspension relative to the duration of the head sentence. For instance, while the sentence was suspended after the service of one-third of the head sentence in Huxtable, the relevant proportion was one-quarter in the case of R v Murphy and two-sevenths in the case of R v Maher.”