R v Pain - [2022] QCA 233

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pain [2022] QCA 233

PARTIES:

R
v
PAIN, Lucas James
(appellant/applicant)

FILE NO/S:

CA No 193 of 2021
DC No 2225 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 26 July 2021; Date of Sentence: 27 July 2021 (Moynihan KC DCJ)

DELIVERED ON:

25 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

30 May 2022

JUDGES:

Mullins P, Morrison JA and Flanagan J

ORDERS:

1.   Appeal against conviction dismissed.

2.   Application for leave to appeal against sentence granted.

3.   Appeal against sentence allowed to the extent of setting aside the presentence custody declaration made by the trial judge on 27 July 2021 and, in lieu, declaring that the offender was held in presentence custody for 1,386 days between 8 February 2019 and 24 November 2022 and that 768 days of that time is taken to be imprisonment already served under the sentence, namely 238 days between 8 February 2019 and 3 October 2019 and 530 days between 13 June 2021 and 24 November 2022.

4.   Otherwise confirm that sentences and orders made by the trial judge on 27 July 2021.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – where the appellant was convicted of one count of malicious act with intent with the serious organised crime circumstance of aggravation – where the appellant was a member of the Rebels Motorcycle Club and the complainant was a member of a rival club the Bandidos Motorcycle Club – where the appellant discharged his handgun in a public place and shot the complainant in the thigh – where the trial judge construed s 31(2) as not extending the protection of s 31(1)(c) if the jury were satisfied beyond reasonable doubt that Mr Pain was a participant in a criminal organisation and exposed himself to the threats made by the complainant, as a result of his entry into an unlawful association – whether the trial judge was in error in giving the impugned direction – whether a miscarriage of justice was occasioned by the trial judge’s direction that the availability of the excuse of compulsion under s 31(1)(c) of the Code could be negatived, if the jury were satisfied that the exception or qualification found in s 31(2) of the Code was established

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the appellant was convicted of one count of malicious act with intent with the serious organised crime circumstance of aggravation – where the appellant discharged his handgun in a public place and shot the complainant in the thigh – where a factual dispute was whether the intent to disable was a momentary intention formed immediately prior to the shooting or whether it was an intention formed earlier – where the trial judge found, in effect, that it was a momentary intention…

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 Pain

Details

AGLC: R v Pain [2022] QCA 233
Case: [2022] QCA 233
Decision Date: 25 November 2022

CaseChat Overview and Summary

The case of R v Pain involved an appeal against both conviction and sentence. The appellant, a member of the Rebels Motorcycle Club, was convicted of discharging a firearm in a public place, shooting the complainant, who was a member of a rival motorcycle club, in the thigh. The legal issues that arose in this case concerned the trial judge's direction to the jury regarding the availability of the defence of compulsion under s 31(1)(c) of the Code and whether the trial judge erred in making a serious violent offence declaration.

The court examined whether the trial judge was correct in directing the jury that the defence of compulsion could be negated if the jury were satisfied that the exception in s 31(2) of the Code applied. The court found no error in the trial judge's direction, concluding that the appellant's membership in a criminal organisation did not preclude the application of the defence of compulsion if the jury was satisfied beyond reasonable doubt of the specific circumstances outlined in s 31(2). Additionally, the court considered whether the trial judge erred in making a serious violent offence declaration, given the circumstances of the offence, including the discharge of the firearm in a public place. The court upheld the declaration, finding it appropriate under the circumstances.

The court also reviewed the sentence imposed on the appellant, which included a six-year base sentence and a serious violent offence declaration. The appellant argued that the base sentence was excessive, given his membership in a criminal organisation. The court found the sentence appropriate, considering the appellant's criminal history and the nature of the offence. However, the court found an error in the presentence custody declaration and corrected it by specifying the days already served.

The final orders of the court were to dismiss the appeal against conviction, grant leave to appeal against sentence, allow the appeal against sentence to the extent of setting aside the presentence custody declaration and substituting an accurate declaration, and otherwise confirm the sentences and orders made by the trial judge.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence granted.

3. Appeal against sentence allowed to the extent of setting aside the presentence custody declaration made by the trial judge on 27 July 2021 and, in lieu, declaring that the offender was held in presentence custody for 1,386 days between 8 February 2019 and 24 November 2022 and that 768 days of that time is taken to be imprisonment already served under the sentence, namely 238 days between 8 February 2019 and 3 October 2019 and 530 days between 13 June 2021 and 24 November 2022.

4. Otherwise confirm that sentences and orders made by the trial judge on 27 July 2021.

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 base sentence of six years’ imprisonment for the subject offence even with a declaration that Mr Pain was convicted of a serious violent offence that followed immediately the period of 16 months’ imprisonment served as the custodial component of the partly suspended sentence for the home invasion did not result in an aggregate sentence for the home invasion and the subject offence that was not just and appropriate for that consecutive offending.Ground 3 – did the trial judge err in making the serious violent offence declaration? As indicated above, the trial judge was entitled to have regard to the circumstances in which Mr Pain discharged the gun and shot the complainant in his leg, even though those circumstances arose from Mr Pain’s membership of the Rebels and his association with other members of the Rebels when the offence was committed (which were the elements of the serious organised crime circumstance of aggravation). There was no error in the circumstances in which the offence was committed which involved firing the handgun in a public place where other people were present, as found by the trial judge consistent with the jury’s verdict and described accurately as “a quintessential serious violent offence”, in declaring that Mr Pain was convicted of a serious violent offence.Was the base sentence the appropriate sentence for Mr Pain’s offending? The base sentence of six years’ imprisonment with the declaration that Mr Pain was convicted of a serious violent offence was the appropriate sentence for Mr Pain’s offending, having regard to his prior criminal history and the circumstances of the offending and having considered totality issues. Apart from correcting the error in the declaration made under s 159A of the Act, it is therefore not necessary to resentence Mr Pain.Orders It follows that the orders which should be made are: Appeal against conviction dismissed. Application for leave to appeal against sentence granted. Appeal against sentence allowed to the extent of setting aside the presentence custody declaration made by the trial judge on 27 July 2021 and, in lieu, declaring that the offender was held in presentence custody for 1,386 days between 8 February 2019 and 24 November 2022 and that 768 days of that time is taken to be imprisonment already served under the sentence, namely 238 days between 8 February 2019 and 3 October 2019 and 530 days between 13 June 2021 and 24 November 2022. Otherwise confirm that sentences and orders made by the trial judge on 27 July 2021. MORRISON JA: I agree with her Honour Mullins P. FLANAGAN J: I agree with Mullins P.

CITATION:	R v Pain [2022] QCA 233
PARTIES:	R v PAIN, Lucas James (appellant/applicant)
FILE NO/S:	CA No 193 of 2021 DC No 2225 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 26 July 2021; Date of Sentence: 27 July 2021 (Moynihan KC DCJ)
DELIVERED ON:	25 November 2022
DELIVERED AT:	Brisbane
HEARING DATE:	30 May 2022
JUDGES:	Mullins P, Morrison JA and Flanagan J
ORDERS:	1. Appeal against conviction dismissed. 2. Application for leave to appeal against sentence granted. 3. Appeal against sentence allowed to the extent of setting aside the presentence custody declaration made by the trial judge on 27 July 2021 and, in lieu, declaring that the offender was held in presentence custody for 1,386 days between 8 February 2019 and 24 November 2022 and that 768 days of that time is taken to be imprisonment already served under the sentence, namely 238 days between 8 February 2019 and 3 October 2019 and 530 days between 13 June 2021 and 24 November 2022. 4. Otherwise confirm that sentences and orders made by the trial judge on 27 July 2021.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – where the appellant was convicted of one count of malicious act with intent with the serious organised crime circumstance of aggravation – where the appellant was a member of the Rebels Motorcycle Club and the complainant was a member of a rival club the Bandidos Motorcycle Club – where the appellant discharged his handgun in a public place and shot the complainant in the thigh – where the trial judge construed s 31(2) as not extending the protection of s 31(1)(c) if the jury were satisfied beyond reasonable doubt that Mr Pain was a participant in a criminal organisation and exposed himself to the threats made by the complainant, as a result of his entry into an unlawful association – whether the trial judge was in error in giving the impugned direction – whether a miscarriage of justice was occasioned by the trial judge’s direction that the availability of the excuse of compulsion under s 31(1)(c) of the Code could be negatived, if the jury were satisfied that the exception or qualification found in s 31(2) of the Code was established CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the appellant was convicted of one count of malicious act with intent with the serious organised crime circumstance of aggravation – where the appellant discharged his handgun in a public place and shot the complainant in the thigh – where a factual dispute was whether the intent to disable was a momentary intention formed immediately prior to the shooting or whether it was an intention formed earlier – where the trial judge found, in effect, that it was a momentary intention…