R v Mallory

Case [2016] QCA 296

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mallory [2016] QCA 296

PARTIES:

R
v
MALLORY, David William
(applicant)

FILE NO/S:

CA No 99 of 2016
DC No 137 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:


District Court at Beenleigh – Date of Sentence: 3 March 2016

DELIVERED ON:

16 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

22 June 2016

JUDGES:

Morrison and Philip McMurdo JJA and Peter Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Grant the application for leave to appeal against sentence.

2.   Allow the appeal.

3.   Vary the sentences for counts 1 and 2 by imposing a term of imprisonment of 18 months and nine months respectively.

4.   Fix the applicant’s parole release date as 16 November 2016.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to various offences including one count of robbery with personal violence – where the applicant was sentenced to three years’ imprisonment – where the applicant was affected by medication and alcohol during the offence – where the applicant’s conduct was bizarre and irrational – where there was some analogy with R v Rogers [1998] QCA 382, characterised as a stealing followed by an assault whilst escaping – where the offending involved a prolonged course of conduct – where the offending involved racial abuse – whether the sentence was manifestly excessive in all the circumstances

R v Boggs[2014] QCA 31, considered
R v Evans and Pearce [2011] 2 Qd R 571; [2011] QCA 135, considered
R v Flew[2008] QCA 290, cited
R v Kolodziej[2008] QCA 184, considered
R v Mules[2007] QCA 47, considered
R v Rogers[1998] QCA 382, considered
R v Torrens[2006] QCA 24, cited

COUNSEL:

R A East for the applicant
S J Farnden for the respondent

SOLICITORS:

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

  1. MORRISON JA:  I have read the reasons of Peter Lyons J and agree with those reasons and the orders his Honour proposes.

  1. PHILIP McMURDO JA:  I agree with Peter Lyons J.

  1. PETER LYONS J:  On 3 March 2016, the applicant pleaded guilty to four counts on an indictment presented in the District Court, and was sentenced.  On a count of robbery with personal violence, he was sentenced to a term of imprisonment of three years.  On a count of entering premises with the intent to commit an indictable offence, he was sentenced to a term of imprisonment of 18 months.  On two counts of assault, he was sentenced in each case to a term of imprisonment of six months.  All sentences were to be served concurrently.  A parole release date was fixed at 2 March 2017.

  2. The applicant has applied for leave to appeal against the sentence on…

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Details
AGLC
R v Mallory [2016] QCA 296
Case
[2016] QCA 296
Decision Date

CaseChat Overview and Summary

In this matter, the applicant, who had previously pleaded guilty to various offences including robbery with personal violence, sought leave to appeal against the sentence imposed by the lower court. The applicant was sentenced to a total of three years' imprisonment, a decision which he contested on the basis that the sentence was manifestly excessive. The applicant argued that his actions were influenced by medication and alcohol, and that his conduct was bizarre and irrational, lacking the usual hallmarks of such offences. The case drew a parallel with R v Rogers, where the defendant committed a stealing followed by an assault while escaping, suggesting that the applicant's conduct was similarly irrational. The applicant's offending also involved a prolonged course of conduct and racial abuse. The central legal issue was whether the sentence imposed was manifestly excessive, considering all circumstances, including the applicant's remorse and the influence of medication and alcohol on his actions.

The court examined the nature of the offences and the applicant's conduct, noting that the offences warranted a term of imprisonment. However, the court considered that the original sentence was excessive due to the applicant's remorse and the mitigating factors of medication and alcohol influence. The court found that the sentence for the robbery offence should be 18 months, and the sentence for entering premises with intent should be reduced to nine months. The court also concluded that the time to be spent in custody should be reduced, and set the parole release date as the date of publication of these reasons. The court's decision was based on a careful consideration of the mitigating factors and the overall circumstances of the case.

In light of the above, the court granted the application for leave to appeal against sentence, allowed the appeal, and varied the sentences for counts 1 and 2 to 18 months and nine months respectively. The court also fixed the applicant's parole release date as 16 November 2016. This decision underscores the importance of considering all relevant factors, including mitigating circumstances, in sentencing, and highlights the court's role in ensuring that sentences are proportionate and just. The final orders were to grant the application for leave to appeal against sentence, allow the appeal, vary the sentences for counts 1 and 2 by imposing terms of imprisonment of 18 months and nine months respectively, and fix the applicant's parole release date as 16 November 2016.

Orders

Orders of the court

1. Grant the application for leave to appeal against sentence.

2. Allow the appeal.

3. Vary the sentences for counts 1 and 2 by imposing a term of imprisonment of 18 months and nine months respectively.

4. Fix the applicant’s parole release date as 16 November 2016.

Background

Background to the litigation

The applicant surrendered himself to the police on 16 May 2014. He said that he was on Prozac and Serepax at the time, and did not remember the incident. He said that he recalled returning to the store to apologise, a fact not recounted by the owners of the supermarket.Applicant’s background The applicant was born on 22 June 1975, and was thus 38 years of age at the time of the offending. He has a two-page criminal history. It includes a number of drug offences, the most recent of which was committed on 6 August 2009. These offences were of a relatively low level, the most significant penalty being a fine of $750. On 4 March 2008, the applicant was sentenced for a number of offences committed on 26 March 2007. The most significant offences were two counts of entering premises and committing an indictable offence by breaking into the premises, for which he was sentenced to terms of imprisonment of 12 months. Lesser penalties were imposed for the other offences. He was released on parole at the time of the sentence. These sentences were imposed by the same Judge whose sentences are the subject of the present application. Otherwise, his criminal history is of little present relevance. The proceedings had been listed for trial before they resolved. The plea was described by the prosecutor on the sentence as a late plea of guilty[1].[1]Appeal Record (AR) p 9. On the sentence, the applicant’s Counsel said that the applicant had six children, including a 16 month old baby with a new partner. The applicant had been working, carrying out house maintenance on a fulltime basis. He appeared to have a good work record. The applicant’s Counsel offered the applicant’s apologies for his behaviour. He also submitted that the range for the sentence was between two and three years, “probably toward the top end of that range”[2].[2]AR p 13. Although the applicant had been in custody, according to his Counsel for a period of “some months”[3], it was not suggested in the sentencing proceedings, or in this application, that that time could be taken into account by way of reduction of the sentence.[3]AR p 12.Sentence At the commencement of the sentence, the learned sentencing Judge asked the applicant if there was anything he wanted to say. The applicant responded, “… I’m just very remorseful and disgusted in my actions on that day and I do not intend to proceed with those lives that I had been leading back then, back in 2013, and, yeah, I’m just very remorseful to be here in front of you today.”[4] The learned sentencing Judge subsequently referred to the applicant’s apology, regarding it as important not only for the complainants, but because it involved an acknowledgement of responsibility. The applicant’s statement was consistent with a letter from the applicant to the sentencing Judge expressing deep remorse and “deeps apologies” and stating that he had not had any alcohol since that day, and that his conduct was “total (sic) out of my character”[5].[4]AR p 15.[5]AR p 51.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The offending warranted a sentence of a term of imprisonment, and some features, including the repeated resort to violence and abuse, made it appropriate that the applicant spend some time in custody. In my view, an appropriate term of imprisonment for the robbery offence would be 18 months. It would then be appropriate to modify the sentence for the offence of entering premises with intent by reducing it to nine months. It was not suggested that the other two sentences should be modified. The time to be spent in custody should also be reduced. I would fix the parole release date as the date of publication of these reasons.Conclusion I would make the following orders:-1.Grant the application for leave to appeal against sentence.2.Allow the appeal.3.Vary the sentences for counts 1 and 2 by imposing a term of imprisonment of 18 months and nine months respectively.4.Fix the applicant’s parole release date as 16 November 2016.

Ratio Decidendi

Legal Principle Established

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