SUPREME COURT OF QUEENSLAND
CITATION:
R v Pashen [2022] QCA 111
PARTIES:
R
v
PASHEN, Shane Michael
(applicant)FILE NO/S:
CA No 324 of 2021
DC No 2463 of 2021DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Brisbane – Date of Sentence: 1 December 2021 (Kent QC DCJ)
DELIVERED ON:
24 June 2022
DELIVERED AT:
Brisbane
HEARING DATE:
8 June 2022
JUDGES:
Mullins P and McMurdo and Bond JJA
ORDERS:
1. The application for leave to appeal against sentence is allowed.
2. The sentence imposed by the sentencing judge is set aside.
3. On each count of the indictment a conviction is recorded.
4. On count 1, the applicant be imprisoned for 6 years.
5. The sentence is to be served cumulatively on the remaining term of imprisonment the applicant is liable to serve in respect of the sentence imposed in the Magistrates Court on 1 February 2021.
6. On count 2, the applicant be imprisoned for 12 months, to be served concurrently with the sentence imposed for count 1.
7. Pursuant to s 159A of the Penalties and Sentences Act 1992:
(a) it is stated that the applicant was held in pre-sentence custody for 258 days between 18 March 2021 and 30 November 2021;
(b) it is ordered that 137 days of pre-sentence custody (from and including 18 March 2021 to and including 2 August 2021) is not to be taken to be imprisonment already served under the sentence; and
(c) it is declared that 121 days of pre-sentence custody (from and including 2 August 2021 to and including 30 November 2021) is to be taken to be time already served under the sentence.
8. The date the applicant is eligible for parole is fixed at 18 January 2023.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant had been sentenced in the Magistrates Court to a term of imprisonment with an immediate parole release – where the applicant committed offences during the period of the parole order – where the applicant pleaded guilty to one count of aggravated burglary and one count of stealing – where the sentencing judge failed to make appropriate orders pursuant to ss 156A, 159A(3A)(b) and 159A(3B)(c) of the Penalties and Sentences Act 1992 (Qld) – whether the sentencing discretion miscarried – whether the sentencing discretion should be exercised afresh
Corrective Services Act 2006 (Qld), s 209(1), s 211
Penalties and Sentences Act 1992 (Qld), s 156A, s 159A, s 159A(3A)(b), s 159A(3B)(c)R v Amato[2013] QCA 158, considered
R v Braeckmans[2022] QCA 25, cited
R v Dougherty & Anor [1999] QCA 73, considered
R v Jones[2000] QCA 84, considered
R v Leu & Togia (2008) 186 A Crim R 240; [2008] QCA 201, considered
R v Macklin[2016] QCA 244, considered
R v Miller[2015] QCA 94, considered
R v Mullins & Kluck[2000]…
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- AGLC
- R v Pashen [2022] QCA 111
- Case
- [2022] QCA 111
- Decision Date
CaseChat Overview and Summary
The court found that the sentencing judge was misled by counsel, who incorrectly informed the court that the period during which the applicant could be considered to be serving out the Magistrates Court sentence could be declared as time already served under the index sentences without contravening section 156A. This misunderstanding was compounded by errors in the pre-sentence custody certificate. The court concluded that the specific error in the sentencing discretion demonstrated that the discretion had miscarried, and therefore, the discretion should be exercised afresh. The court considered the circumstances of the offending, the impact on the victims, and the principles of sentencing. The applicant and his accomplice entered the complainant's home unit uninvited, with the accomplice armed with a firearm and a pocketknife. The applicant laughed while holding the complainant's heavily pregnant daughter away from the assailant, who threatened and injured the complainant. The applicant also stole the complainant's mobile phone during the incident.
The court set aside the sentence imposed by the sentencing judge and imposed a new sentence. The applicant was sentenced to 6 years imprisonment for the count of aggravated burglary, to be served cumulatively with the remaining term of imprisonment from the Magistrates Court sentence. For the count of stealing, the applicant was sentenced to 12 months imprisonment, to be served concurrently with the sentence for count 1. The court also made specific orders regarding the pre-sentence custody, stating that 137 days was not to be counted as time already served, while 121 days was to be counted as time already served. The date of eligibility for parole was fixed at 18 January 2023.
Orders
Orders of the court
1. The application for leave to appeal against sentence is allowed.
2. The sentence imposed by the sentencing judge is set aside.
3. On each count of the indictment a conviction is recorded.
4. On count 1, the applicant be imprisoned for 6 years.
5. The sentence is to be served cumulatively on the remaining term of imprisonment the applicant is liable to serve in respect of the sentence imposed in the Magistrates Court on 1 February 2021.
6. On count 2, the applicant be imprisoned for 12 months, to be served concurrently with the sentence imposed for count 1.
7. Pursuant to s 159A of the Penalties and Sentences Act 1992:
(a) it is stated that the applicant was held in pre-sentence custody for 258 days between 18 March 2021 and 30 November 2021;
(b) it is ordered that 137 days of pre-sentence custody (from and including 18 March 2021 to and including 2 August 2021) is not to be taken to be imprisonment already served under the sentence; and
(c) it is declared that 121 days of pre-sentence custody (from and including 2 August 2021 to and including 30 November 2021) is to be taken to be time already served under the sentence.
8. The date the applicant is eligible for parole is fixed at 18 January 2023.
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 sentencing judge was informed by counsel, wrongly, that the period in which the applicant could be regarded as serving out the Magistrates Court sentence could be the subject of a declaration as time already served under the index sentences without infringing s 156A. (R v Braeckmans was delivered after the imposition of the index sentence). The difficulty for the sentencing judge was also compounded by errors in the pre-sentence custody certificate. Nevertheless, the result of the foregoing discussion is that – specific error in the sentencing discretion having been demonstrated – this Court is required to exercise the sentencing discretion afresh.Considerations relevant to sentenceThe circumstances of the offending The complainant and his heavily pregnant 17-year-old daughter were at home on the afternoon of 17 March 2021, when the applicant, aged 40, and Tratt, aged 26, entered their home unit, uninvited. The daughter was in her bedroom and saw them walk past her room towards the bedroom in which her father lay sleeping. She got up and followed them, shouting at them for barging into their unit. Tratt was armed with shortened firearm and a pocketknife. He went to the complainant’s bed and the applicant stood in the doorway to the bedroom. The complainant woke up when Tratt poked him with the pocketknife. The daughter had pushed past the applicant into the bedroom and yelled at Tratt and the applicant to get out. She tried to wrestle the gun out of Tratt’s hand. The applicant involved himself by holding the daughter away from Tratt. He was laughing as he did so. Tratt pointed the gun at the complainant’s chest, pulling the trigger on at least two occasions. The complainant thought he was going to be shot, but the gun didn’t fire. At some point, Tratt hit the complainant on the head with the barrel of the gun and, when the complainant tried to get up off the bed, Tratt swung his hand and cut the complainant’s ear with the pocketknife. Whilst the complainant was yelling at them to get out of his house, Tratt told the applicant to get the keys and the phone. The applicant managed to grab the complainant’s mobile phone – that was the stealing which was the subject of count 2 – but they could not find any keys. The four of them moved out of the complainant’s bedroom and the daughter armed herself with a knife from the kitchen. After she came towards Tratt and the applicant with the knife, they ran out of the unit, got into a car driven by an unknown driver and made their getaway. The police attended a short time later. The complainant was taken to hospital in an ambulance, having sustained a 1cm laceration to the right ear lobe and a 1mm stab wound to the left thigh. Tratt and the applicant were known to the complainant and his daughter. Part of their offending was witnessed by neighbours. Indeed, one of the neighbours and also the complainant and his daughter identified the getaway vehicle as one which belonged to the applicant’s mother.