R v Palmer - [2023] QCA 118

SUPREME COURT OF QUEENSLAND

CITATION:

R v Palmer [2023] QCA 118

PARTIES:

R
v
PALMER, Stuart William
(appellant)

FILE NO/S:

CA No 174 of 2022
DC No 228 of 2022
DC No 693 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 4 April 2022 (Burnett DCJ)

DELIVERED ON:

Date of Orders: 9 February 2023
Date of Publication of Reasons: 2 June 2023

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2023

JUDGES:

Mullins P, Bond JA and Martin SJA

ORDERS:

Date of Orders: 9 February 2023

1.   Application for leave to appeal against sentence granted.

2.   Appeal against sentence allowed.

3.    Set aside the sentence of six months’ imprisonment for count 3 on indictment no 693/22 and in lieu order that the appellant be released under the supervision of an authorised Corrective Services officer for a period of 12 months and that he must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992 (Qld) and report within two business days of release from custody to an authorised Corrective Services officer at Brisbane (Spring Hill) and a conviction is recorded.

4.    Set aside the fixing of a parole release date on 27 June 2022 [and] the sentencing judge’s decision not to make a presentence custody declaration.

5.    Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), it is declared that the dates between which the appellant was held in presentence custody were:

(a)    between 2 March 2020 and 21 December 2020 (295 days);

(b)   between 17 March 2021 and 9 April 2021 (24 days);

(c)    between 13 June 2021 and 15 October 2021 (125 days); and

(d)    between 16 February 2022 and 21 June 2022 (126 days)

and it is declared that 570 days, namely between 2 March 2020 and 21 December 2020, between 17 March 2021 and 9 April 2021, between 13 June 2021 and 15 October 2021 and between 16 February 2022 and 21 June 2022 is taken to be imprisonment already served under the sentences.

6.    In respect of each of the sentences of imprisonment imposed by the sentencing judge on 22 June 2022 (other than the sentence for count 3 on indictment no 693/22 which has been varied by these orders) order that the term of imprisonment be suspended after serving a period of 570 days’ imprisonment and the appellant must not commit another offence punishable by imprisonment within a period of three years if to avoid being dealt with for the suspended term of imprisonment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to seven offences of burglary and stealing, two counts of unlawfully using a motor vehicle, dangerous operation of a motor vehicle, attempted burglary and two counts of stealing – where the applicant was sentenced to three years’ imprisonment on the burglary and stealing and concurrent sentences…

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 Palmer

Details

AGLC: R v Palmer [2023] QCA 118
Case: [2023] QCA 118
Decision Date: 2 June 2023

CaseChat Overview and Summary

The case of R v Palmer involved an appeal against sentence, where the applicant, who had pleaded guilty to multiple offences including burglary, stealing, and dangerous operation of a motor vehicle, sought to challenge the sentence imposed by the court. The applicant was sentenced to three years' imprisonment for the burglary and stealing offences, with concurrent sentences for the other offences. The applicant's appeal centred on the failure of the sentencing judge to consider a psychologist's report, which was available but not tendered at the sentencing hearing due to a procedural error. This report contained information pertinent to the applicant's PTSD and alcohol abuse, which the applicant argued should have influenced the sentence.

The legal issues before the court were whether the error regarding the psychologist's report warranted interference with the sentence, and if so, what the appropriate re-sentencing should be. The court had to determine whether the mistake of fact concerning the report's availability constituted a ground for re-sentencing and how this error impacted the overall sentencing process. Additionally, the court needed to consider the principles of totality and the impact of presentence custody on the sentence.

The court allowed the appeal, finding that the error concerning the psychologist's report was significant enough to warrant re-sentencing. It was held that the report's content, which was not otherwise before the sentencing judge, provided crucial context regarding the applicant's mental health and substance abuse issues. The court re-evaluated the sentence by giving greater weight to these factors and the presentence custody that had not been taken into account. The court also made a presentence custody declaration, taking into account the days the applicant had spent in custody prior to sentencing.

The final orders of the court included granting leave to appeal against sentence, allowing the appeal, setting aside the sentence for one of the counts, and ordering the applicant's release under supervision with specific conditions. The court also declared the periods of presentence custody and ordered that these periods be counted towards the sentences imposed. The remaining sentences were suspended, with conditions that the applicant must not commit any imprisonable offences within three years.

Orders

Orders of the court

Date of Orders: 9 February 2023

1. Application for leave to appeal against sentence granted.

2. Appeal against sentence allowed.

3. Set aside the sentence of six months’ imprisonment for count 3 on indictment no 693/22 and in lieu order that the appellant be released under the supervision of an authorised Corrective Services officer for a period of 12 months and that he must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992 (Qld) and report within two business days of release from custody to an authorised Corrective Services officer at Brisbane (Spring Hill) and a conviction is recorded.

4. Set aside the fixing of a parole release date on 27 June 2022 [and] the sentencing judge’s decision not to make a presentence custody declaration.

5. Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), it is declared that the dates between which the appellant was held in presentence custody were:

(a) between 2 March 2020 and 21 December 2020 (295 days);

(b) between 17 March 2021 and 9 April 2021 (24 days);

(d) between 16 February 2022 and 21 June 2022 (126 days)

and it is declared that 570 days, namely between 2 March 2020 and 21 December 2020, between 17 March 2021 and 9 April 2021, between 13 June 2021 and 15 October 2021 and between 16 February 2022 and 21 June 2022 is taken to be imprisonment already served under the sentences.

6. In respect of each of the sentences of imprisonment imposed by the sentencing judge on 22 June 2022 (other than the sentence for count 3 on indictment no 693/22 which has been varied by these orders) order that the term of imprisonment be suspended after serving a period of 570 days’ imprisonment and the appellant must not commit another offence punishable by imprisonment within a period of three years if to avoid being dealt with for the suspended term of imprisonment.

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

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CITATION:	R v Palmer [2023] QCA 118
PARTIES:	R v PALMER, Stuart William (appellant)
FILE NO/S:	CA No 174 of 2022 DC No 228 of 2022 DC No 693 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 4 April 2022 (Burnett DCJ)
DELIVERED ON:	Date of Orders: 9 February 2023 Date of Publication of Reasons: 2 June 2023
DELIVERED AT:	Brisbane
HEARING DATE:	9 February 2023
JUDGES:	Mullins P, Bond JA and Martin SJA
ORDERS:	Date of Orders: 9 February 2023 1. Application for leave to appeal against sentence granted. 2. Appeal against sentence allowed. 3. Set aside the sentence of six months’ imprisonment for count 3 on indictment no 693/22 and in lieu order that the appellant be released under the supervision of an authorised Corrective Services officer for a period of 12 months and that he must comply with the requirements set out in s 93(1) of the *Penalties and Sentences Act 1992* (Qld) and report within two business days of release from custody to an authorised Corrective Services officer at Brisbane (Spring Hill) and a conviction is recorded. 4. Set aside the fixing of a parole release date on 27 June 2022 [and] the sentencing judge’s decision not to make a presentence custody declaration. 5. Pursuant to s 159A of the *Penalties and Sentences Act 1992* (Qld), it is declared that the dates between which the appellant was held in presentence custody were: (a) between 2 March 2020 and 21 December 2020 (295 days); (b) between 17 March 2021 and 9 April 2021 (24 days); (c) between 13 June 2021 and 15 October 2021 (125 days); and (d) between 16 February 2022 and 21 June 2022 (126 days) and it is declared that 570 days, namely between 2 March 2020 and 21 December 2020, between 17 March 2021 and 9 April 2021, between 13 June 2021 and 15 October 2021 and between 16 February 2022 and 21 June 2022 is taken to be imprisonment already served under the sentences. 6. In respect of each of the sentences of imprisonment imposed by the sentencing judge on 22 June 2022 (other than the sentence for count 3 on indictment no 693/22 which has been varied by these orders) order that the term of imprisonment be suspended after serving a period of 570 days’ imprisonment and the appellant must not commit another offence punishable by imprisonment within a period of three years if to avoid being dealt with for the suspended term of imprisonment.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to seven offences of burglary and stealing, two counts of unlawfully using a motor vehicle, dangerous operation of a motor vehicle, attempted burglary and two counts of stealing – where the applicant was sentenced to three years’ imprisonment on the burglary and stealing and concurrent sentences…