R v RBE

Case [2021] QCA 146 20 July 2021

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SUPREME COURT OF QUEENSLAND

CITATION:

R v RBE [2021] QCA 146

PARTIES:

R
v
RBE
(applicant)

FILE NO/S:

CA No 270 of 2020
DC No 473 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court of Queensland at Townsville – Date of Sentence: 11 November 2020 (Loury QC DCJ)

DELIVERED ON:

Date of Orders: 23 February 2021
Date of Publication of Reasons: 20 July 2021

DELIVERED AT:

Brisbane

HEARING DATE:

23 February 2021

JUDGES:

Morrison and McMurdo JJA and Burns J

ORDERS:

Orders delivered: 23 February 2021

1.   Grant leave to appeal.

2.   Allow the appeal.

3.   Vary the sentence imposed in the District Court by:

a.   Substituting three (3) years imprisonment; and

b.   Suspending the sentence forthwith for an operational period of three (3) years.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to an ex officio indictment alleging one count of arson of a dwelling – where the sentence proceeded on the basis of an agreed statement of facts – where the agreed statement of facts was silent as to the applicant’s motive – where the sentencing judge drew an inference as to the applicant’s motive – whether the sentencing judge thereby fell into error

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to an ex officio indictment alleging one count of arson of a dwelling –where the applicant was sentenced to imprisonment for four years imprisonment, suspended after serving 12 months, for an operational period of four years – whether the sentence was manifestly excessive

Domestic and Family Violence Protection Act 2012 (Qld), s 8(2)(c)
Evidence Act1977 (Qld), s 132
Penalties and Sentences Act1992 (Qld), s 15

R v Ball[2001] QCA 201, considered
RvCarrall[2018] QCA 355, cited
RvCumner[2020] QCA 54, cited
RvField[2017] QCA 188, cited
RvGaleano [2013] 2 Qd R 464; [2013] QCA 51, cited
R v Leslie[2016] QCA 15, considered
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54, cited
RvTa[2019] QCA 53, cited
RvWelsh [1983] 1 Qd R 592, cited
Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10, cited

COUNSEL:

J A Greggery QC for the applicant
D Nardone for the respondent

SOLICITORS:

Purcell Taylor Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: I have had the considerable advantage of reading the draft reasons of Burns J. His Honour’s reasons reflect my own for joining in the orders made on 23 February 2021.
McMURDO JA: I agree with the reasons given by Burns J.
BURNS J: By this application, leave was sought to appeal against a sentence imposed in…

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 RBE

Details

AGLC: R v RBE [2021] QCA 146
Case: [2021] QCA 146
Decision Date: 20 July 2021

CaseChat Overview and Summary

In the case of R v RBE, the appellant, who had pleaded guilty to an ex officio indictment of arson of a dwelling, sought to appeal against the sentence imposed. The sentence involved a term of four years imprisonment, suspended after 12 months, with an operational period of four years. The appeal was based on the contention that the sentence was manifestly excessive and that the sentencing judge had erred by inferring the appellant's motive without it being stated in the agreed statement of facts.

The legal issues before the court involved determining whether the sentencing judge erred by drawing an inference as to the appellant's motive when this was not included in the agreed statement of facts. Additionally, the court needed to decide if the sentence imposed was manifestly excessive. The appeal hinged on whether the error in inferring the motive and the excessiveness of the sentence provided grounds for interference with the original judgment.

The court concluded that the sentencing judge had indeed erred by drawing an inference as to the appellant's motive, which was not included in the agreed statement of facts. This error affected the overall assessment of the case and the sentence imposed. Furthermore, the court found that the sentence was manifestly excessive, considering the agreed facts and the nature of the offence. The court thus found merit in the appeal and varied the sentence to three years imprisonment, suspended forthwith for an operational period of three years.

The orders delivered on 23 February 2021 included granting leave to appeal, allowing the appeal, and varying the original sentence. The new sentence imposed was three years imprisonment, suspended forthwith, with an operational period of three years. This decision highlights the importance of adherence to the agreed statement of facts and the need for proportionality in sentencing.

Orders

Orders of the court

Orders delivered: 23 February 2021

1. Grant leave to appeal.

2. Allow the appeal.

3. Vary the sentence imposed in the District Court by:

a. Substituting three (3) years imprisonment; and

b. Suspending the sentence forthwith for an operational period of three (3) years.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

R v RBE [2021] QCA 146

Most Recent Citation

R v Tran [2022] QCA 116

Cases Citing This Decision

Getawan v Queensland Police Service [2024] QCA 234
Citation 1

…ce [2018] 2 Qd R 612; [2017] QCA 255, cited R v Gerhardt (2019) 3 QR 48; [2019] QCA 283, cited R v RBE (2021) 8 QR 358; [2021] QCA 146, cited COUNSEL: The applicant appeared on his own behalf S R O’Rourke for the respondent SOLICITORS: The applicant appeared on his own behalf Director of Public Prosecutions (Quee…
R v RBM [2024] QCA 163
Citation 2 (Para 1)

…ances where the applicant’s counsel submitted for one such view as the sentencing basis (that it was a suicide attempt). [18](2021) 8 QR 358; [2021] QCA 146.…
R v Kulatunge [2023] QCA 252
Citation 3

…011] HCA 49, applied R v Handlen [2015] QCA 292, cited R v Ocampo Alvarez [2018] QCA 162, cited R v RBE (2021) 8 QR 358; [2021] QCA 146, applied Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10, applied COUNSEL: S C Holt KC for the applicant C O’Connor and J J Underwood for the respondent SOLICITORS: Kadadi &…
R v Fisher [2022] QSC 189
Citation 4 (Para 23)

…he Crown’s prerogative to decide what charge is brought (or maintained) and what allegations are advanced in support of the charge. See R v RBE [2021] QCA 146, [23] [5]See Criminal Code (Qld), s 302(1)(a); Transcript, 1-8. [6]See Criminal Code (Qld), s 302(1)(aa); Transcript, 1-8. [7] Criminal Code (Qld), s 305(1…
R v Tran [2022] QCA 116
Citation 5 (Para 31)

…uary 2016 and later at a hardware store. Doan and the applicant would liaise about matters relating to drug production. [7] R v RBE [2021] QCA 146, [24].…
R v Bakunowich & Dalgleish [2021] QDC 346
Citation 6 (Para 9)

…pon it on the basis of the evidence so far called would be to reverse the onus or to deny natural justice. [17]Morrison and McMurdo JJA agreeing. [18][2021] QCA 146 at [24].…
RMP v Buley [2021] QDC 228
Citation 7 (Para 1)

…ted by the offender, it is for the prosecution to prove all matters of fact on which it relies that are adverse to the interests of the offender. [7] [2021] QCA 146 at [22]…

See all citing cases →

Cases Cited

R v Cumner [2020] QCA 54
Citation 1 (Para 3)

…where proof of the disputed fact carries with it significant consequences for the offender’s sentence: R v Ta [2019] QCA 53, [12]-[13]; R v Cumner [2020] QCA 54, [53]. Furthermore, s 132C is not merely concerned with the presentation by the prosecution of the primary facts; it also governs the making of an alle…
Strbak v The Queen [2020] HCA 10
Citation 2

…, cited R v Ta [2019] QCA 53, cited R v Welsh [1983] 1 Qd R 592, cited Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10, cited COUNSEL: J A Greggery QC for the applicant D Nardone for the respondent SOLICITORS: Purcell Taylor Lawyers for the applicant Director of Public Prosecutions (Queensland) for the resp…
R v Ta [2019] QCA 53
Citation 3 (Para 3)

…ed degree of satisfaction may be high where proof of the disputed fact carries with it significant consequences for the offender’s sentence: R v Ta [2019] QCA 53, [12]-[13]; R v Cumner [2020] QCA 54, [53]. Furthermore, s 132C is not merely concerned with the presentation by the prosecution of the primary facts;…
R v Carrall [2018] QCA 355
Citation 4 (Para 3)

…t is to be observed that s 132C is concerned with allegations of fact, the onus of proof of which necessarily rests with the prosecution: R v Carrall [2018] QCA 355, [9]. The sentencing judge may act on an allegation of fact that is admitted or not challenged, but he or she is not obliged to do so. Where an alleg…
R v Field [2017] QCA 188
Citation 5 (Para 4)

…, that inclination must be made known to the offender who must be given a reasonable opportunity to make good that which has been asserted: R v Field [2017] QCA 188, [48]. That said, in cases where differing versions of relevant events have like probability then the version most favourable to the offender should…
R v Leslie [2016] QCA 15
Citation 6 (Para 12)

…ension or parole order” to reflect the factors in mitigation was advanced, with reliance placed on R v Ball [2001] QCA 201 and R v Leslie [2016] QCA 15.…
R v Galeano [2013] QCA 51
Citation 7

…QCA 355, cited R v Cumner [2020] QCA 54, cited R v Field [2017] QCA 188, cited R v Galeano [2013] 2 Qd R 464; [2013] QCA 51, cited R v Leslie [2016] QCA 15, considered R v Olbrich (1999) 199 CLR 270; [1999] HCA 54, cited R v Ta [2019] QCA 53, cited R v Welsh [1983] 1 Qd R 592, cited Strbak v The Queen (2020) 267…
R v Ball [2001] QCA 201
Citation 8 (Para 12)

…n “earlier than otherwise suspension or parole order” to reflect the factors in mitigation was advanced, with reliance placed on R v Ball [2001] QCA 201 and R v Leslie [2016] QCA 15.…
R v Olbrich [1999] HCA 54
Citation 9

…[2013] 2 Qd R 464; [2013] QCA 51, cited R v Leslie [2016] QCA 15, considered R v Olbrich (1999) 199 CLR 270; [1999] HCA 54, cited R v Ta [2019] QCA 53, cited R v Welsh [1983] 1 Qd R 592, cited Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10, cited COUNSEL: J A Greggery QC for the applicant D Nardone for th…

Legislation Cited

Evidence Act 1977 (Qld) 132
2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld) 15
2 mentions (from Para 2)
Domestic and Family Violence Protection Act 2012 (Qld) 8(2)(c)
1 mention (from Para 10)
Youth Justice Act 1992 (Qld)
1 mention (from Para 2)

CITATION:	R v RBE [2021] QCA 146
PARTIES:	R v RBE (applicant)
FILE NO/S:	CA No 270 of 2020 DC No 473 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court of Queensland at Townsville – Date of Sentence: 11 November 2020 (Loury QC DCJ)
DELIVERED ON:	Date of Orders: 23 February 2021 Date of Publication of Reasons: 20 July 2021
DELIVERED AT:	Brisbane
HEARING DATE:	23 February 2021
JUDGES:	Morrison and McMurdo JJA and Burns J
ORDERS:	Orders delivered: 23 February 2021 1. Grant leave to appeal. 2. Allow the appeal. 3. Vary the sentence imposed in the District Court by: a. Substituting three (3) years imprisonment; and b. Suspending the sentence forthwith for an operational period of three (3) years.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to an ex officio indictment alleging one count of arson of a dwelling – where the sentence proceeded on the basis of an agreed statement of facts – where the agreed statement of facts was silent as to the applicant’s motive – where the sentencing judge drew an inference as to the applicant’s motive – whether the sentencing judge thereby fell into error CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to an ex officio indictment alleging one count of arson of a dwelling –where the applicant was sentenced to imprisonment for four years imprisonment, suspended after serving 12 months, for an operational period of four years – whether the sentence was manifestly excessive Domestic and Family Violence Protection Act 2012 (Qld), s 8(2)(c) Evidence Act1977 (Qld), s 132 Penalties and Sentences Act1992 (Qld), s 15 R v Ball[2001] QCA 201, considered RvCarrall[2018] QCA 355, cited RvCumner[2020] QCA 54, cited RvField[2017] QCA 188, cited RvGaleano [2013] 2 Qd R 464; [2013] QCA 51, cited R v Leslie[2016] QCA 15, considered R v Olbrich (1999) 199 CLR 270; [1999] HCA 54, cited RvTa[2019] QCA 53, cited RvWelsh [1983] 1 Qd R 592, cited Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10, cited
COUNSEL:	J A Greggery QC for the applicant D Nardone for the respondent
SOLICITORS:	Purcell Taylor Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent