R v Pitt - [2017] QCA 13

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pitt [2017] QCA 13

PARTIES:

R
v
PITT, Edward Robert Lawrence
(applicant)

FILE NO/S:

CA No 215 of 2016
DC No 836 of 2016
DC No 862 of 2016
DC No 1387 of 2016
DC No 1394 of 2016
DC No 1395 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 15 July 2016

DELIVERED ON:

17 February 2017

DELIVERED AT:

Brisbane

HEARING DATE:

2 February 2017

JUDGES:

Holmes CJ and Philip McMurdo JA and Bond J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – where the offender pleaded guilty to a charge of doing grievous bodily harm upon his then partner – where the complainant suffered severe facial injuries and a severe traumatic brain injury – where the complainant suffered severely reduced quality of life as a result of the attack – where the offender was 18 years at the time of the offence – where the offender had some prospect of rehabilitation – where the offender was sentenced to six years’ imprisonment for the offence – where the offence was declared to be a domestic violent offence – where the offence was declared to be a serious violent offence – whether the sentence was manifestly excessive, particularly by reason of the declaration that the offence was a serious violent offence

Penalties and Sentences Act 1992 (Qld), s 161B(3)

R v Aplin[2014] QCA 332, considered
R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, considered
R v Orchard[2005] QCA 141, cited
R v Richardson[2010] QCA 216, cited
R v Smith[2016] QCA 9, considered
R v Tahir; Ex parte Attorney-General (Qld)[2013] QCA 294, considered

COUNSEL:

C Reid for the applicant
M R Byrne QC, with C Webber, for the respondent

SOLICITORS:

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

HOLMES CJ: I agree with the reasons of P McMurdo JA and the order he proposes.

PHILIP McMURDO JA: On 15 July 2016 the applicant was sentenced to a term of six years’ imprisonment for doing grievous bodily harm. There was a declaration that this was a serious violent offence.[1] The victim was the woman who was his then partner and the offence was declared to be also a domestic violent offence.[2] He had served nearly a year in pre-sentence custody. He applies for leave to appeal against that sentence on the ground that it is manifestly excessive. As that case was argued, it focused upon the serious violent offence declaration.
[1]under s 161B(3) of the Penalties and Sentences Act 1992 (Qld).
[2]under s 12A of that Act.
The facts of the…

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 Pitt

Details

AGLC: R v Pitt [2017] QCA 13
Case: [2017] QCA 13
Decision Date: 17 February 2017

CaseChat Overview and Summary

The case of R v Pitt involves an appeal against sentence by the offender, who had pleaded guilty to a charge of causing grievous bodily harm to his then partner. The complainant suffered severe facial injuries and a severe traumatic brain injury, resulting in a significantly reduced quality of life. The offender was 18 years old at the time of the offence, and there was some prospect of rehabilitation. The sentence imposed was six years' imprisonment, with the offence declared as both a domestic violent offence and a serious violent offence. The offender contested the severity of the sentence and the declaration of the offence as a serious violent offence.

The legal issues in this case centred around the appropriateness of the sentence and the declaration of the offence as a serious violent offence. The court had to consider whether the sentence was manifestly excessive, particularly in light of the declaration that the offence was a serious violent offence. The court also needed to determine if the sentencing judge had properly exercised the discretion to make such a declaration under s 161B(3) of the Penalties and Sentences Act 1992 (Qld).

The court examined the sentencing judge's considerations in making the declaration, including the extreme violence of the attack, the severity of the consequences for the complainant, and the offender's recent criminal history for violent offending, set against the mitigating factors of the offender's age and some prospect for rehabilitation. The court found that the sentencing judge had appropriately exercised the discretion, taking into account all relevant considerations. The court also noted that while the offender's age and prospect of rehabilitation were mitigating factors, they did not necessarily preclude the declaration of the offence as a serious violent offence. The court rejected the offender's argument that the sentence was manifestly excessive, finding that the sentence and the declaration were appropriate given the circumstances of the case.

The final order of the court was that the application for leave to appeal against sentence was refused.

Orders

Orders of the court

Application for leave to appeal against sentence 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

Tahir and Aplin could be said to be yet more serious offences than the present case. Smith is more similar to the present case but its relevance is limited because it was not a sentence imposed by this court and it should not be supposed that a higher sentence could not have been imposed in that case.Declaration of a serious violent offence The result of the declaration was to defer the applicant’s eligibility for parole until he had served more than 57 months of his 72 month term. The discretion to make the declaration was conferred by s 161B(3) of the Penalties and Sentences Act 1992 (Qld). The Act does not specify the relevant considerations for the exercise of the discretion but they are established by decisions of this court, particularly R v McDougall and Collas.[6] In that case the Court (Jerrard, Keane and Holmes JJA) made several observations as to the exercise of this discretion including that “the considerations which may be taken into account in the exercise of the discretion are the same as those which may be taken into account in relation to other aspects of sentencing” and that “it will usually be necessary that declarations be reserved for the more serious offences that, by their nature, warrant them”.[7]The Court continued:[8]“The considerations which may lead a sentencing judge to conclude that there is good reason to postpone the date of eligibility for parole would usually be concerned with circumstances which aggravate the offence in a way which suggests that the protection of the public or adequate punishment requires a longer period in actual custody before eligibility for parole than would otherwise be required by the Act having regard to the term of imprisonment imposed. In that way, the exercise of the discretion will usually reflect an appreciation by the sentencing judge that the offence is a more than usually serious, or violent, example of the offence in question and, so, outside ‘the norm’ for that type of offence.” (footnotes omitted)[6][2007] 2 Qd R 87; [2006] QCA 365.[7][2007] 2 Qd R 87, 96 [19].[8][2007] 2 Qd R 87, 97 [21]. In the passage from the reasons of the sentencing judge which is set out above, his Honour identified the relevant considerations as what he described as the extreme violence by the applicant, the severity of the consequences for the complainant and the applicant’s recent criminal history for violent offending, put against the mitigating factors of his age and “some prospect for rehabilitation”. It was submitted for the applicant that the relevant considerations also included the fact that no weapon was used and that the injuries may have been caused by “one blow or a series of blows”. But it was not submitted that his Honour overlooked those considerations: rather it was said that those matters, taken with the applicant’s age, meant that this was not a case for a declaration. The applicant’s submissions referred to the dicta of McPherson JA in R v Orchard[9] and White JA in R v Richardson[10] which questioned the relevance of an offender’s criminal history for violent offending in the exercise of this discretion. But it was not submitted that this court should hold that the sentencing judge was wrong to refer to that as a relevant consideration. The majority of the court in Orchard apparently considered that the offender’s criminal history was relevant in this respect.[11] Again the applicant’s argument is not that there was an identifiable error in the exercise of the discretion, but rather that the existence of an error appears from a manifestly excessive sentence.[9][2005] QCA 141 [6]-[7].[10][2010] QCA 216 [41]-[42].[11][2005] QCA 141 [26] and [40].

CITATION:	R v Pitt [2017] QCA 13
PARTIES:	R v PITT, Edward Robert Lawrence (applicant)
FILE NO/S:	CA No 215 of 2016 DC No 836 of 2016 DC No 862 of 2016 DC No 1387 of 2016 DC No 1394 of 2016 DC No 1395 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 15 July 2016
DELIVERED ON:	17 February 2017
DELIVERED AT:	Brisbane
HEARING DATE:	2 February 2017
JUDGES:	Holmes CJ and Philip McMurdo JA and Bond J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – where the offender pleaded guilty to a charge of doing grievous bodily harm upon his then partner – where the complainant suffered severe facial injuries and a severe traumatic brain injury – where the complainant suffered severely reduced quality of life as a result of the attack – where the offender was 18 years at the time of the offence – where the offender had some prospect of rehabilitation – where the offender was sentenced to six years’ imprisonment for the offence – where the offence was declared to be a domestic violent offence – where the offence was declared to be a serious violent offence – whether the sentence was manifestly excessive, particularly by reason of the declaration that the offence was a serious violent offence Penalties and Sentences Act 1992 (Qld), s 161B(3) R v Aplin[2014] QCA 332, considered R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, considered R v Orchard[2005] QCA 141, cited R v Richardson[2010] QCA 216, cited R v Smith[2016] QCA 9, considered R v Tahir; Ex parte Attorney-General (Qld)[2013] QCA 294, considered
COUNSEL:	C Reid for the applicant M R Byrne QC, with C Webber, for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent