R v Reynolds - [2013] QCA 368

SUPREME COURT OF QUEENSLAND

CITATION:

R v Reynolds [2013] QCA 368

PARTIES:

R
v
REYNOLDS, Isaiah Bahloo
(applicant)

FILE NO/S:

CA No 110 of 2013
DC No 71 of 2013
DC No 124 of 2013
DC No 138 of 2013
DC No 292 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

10 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

6 September 2013

JUDGES:

Holmes and Fraser JJA and Margaret Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application for leave to appeal against sentence is granted.

2.   The appeal is allowed.

3.   The sentence imposed below is varied by

deleting the declaration that the applicant had been in pre-sentence custody for 265 days between 13 May 2011 and 1 February 2012 and substituting “It is declared that the defendant was held in pre‑sentence custody for 365 days between 13 May 2011 and 12 May 2012” (i)

adding “It is declared that the defendant was held in pre-sentence custody for 241 days between 7 August 2012 and 4 April 2013”(ii)

adding “The period of 606 days is declared to be imprisonment already served under the sentence imposed”.(iii)

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of being in premises and stealing and was sentenced to two years imprisonment – where the offences were committed during the operational period of an earlier term of imprisonment for four years, suspended after one year and during a three year period of probation which was combined with 12 months imprisonment – where the sentencing judge activated the three year balance of the period of suspended imprisonment, revoked the probation order and imposed concurrent sentences of four years for those offences – where the sentences of two years for the stealing offences were made cumulative on those sentences – where the sentencing judge calculated parole eligibility on the basis that the applicant should be eligible after serving one third of the two year sentences and half the four year sentences – whether the mitigating circumstances of admissions and an early plea which were taken into account when the four year sentences were originally imposed should have been taken into account when the suspended sentence was activated, so as to result in a parole eligibility date set at one third of the cumulative sentences – whether the resulting sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of being in premises and stealing and was sentenced to two years imprisonment – where the offences were committed during the operational period of an earlier term of imprisonment for four years, suspended after one year and…

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 Reynolds

Details

AGLC: R v Reynolds [2013] QCA 368
Case: [2013] QCA 368
Decision Date: 10 December 2013

CaseChat Overview and Summary

In the case of R v Reynolds, the applicant appealed against the sentence imposed by the sentencing judge. The applicant had pleaded guilty to two counts of being in premises and stealing. The sentencing judge activated a three-year balance of a suspended four-year term of imprisonment, revoked a probation order, and imposed concurrent sentences of four years for the earlier offences. The sentences for the stealing offences were made cumulative on the four-year sentences, and parole eligibility was calculated on the basis that the applicant should be eligible after serving one third of the two-year sentences and half of the four-year sentences.

The primary legal issue was whether the mitigating circumstances of admissions and an early plea, which were taken into account when the four-year sentences were originally imposed, should have been taken into account when the suspended sentence was activated, so as to result in a parole eligibility date set at one third of the cumulative sentences. The court also considered whether the resulting sentence was manifestly excessive. Another issue was whether the sentence application and appeal should be allowed for the purpose of correcting the pre-sentence custody declarations.

The court found that the mitigating circumstances should have been taken into account when the suspended sentence was activated, and the resulting sentence was manifestly excessive. The court also found that the pre-sentence custody declarations should be corrected. The appeal was allowed, and the sentence was varied accordingly.

The final orders included granting the application for leave to appeal against sentence, allowing the appeal, and varying the sentence by correcting the pre--sentence custody declarations and setting the parole eligibility date.

Orders

Orders of the court

1. The application for leave to appeal against sentence is granted.

2. The appeal is allowed.

3. The sentence imposed below is varied by

deleting the declaration that the applicant had been in pre-sentence custody for 265 days between 13 May 2011 and 1 February 2012 and substituting “It is declared that the defendant was held in pre‑sentence custody for 365 days between 13 May 2011 and 12 May 2012” (i)

adding “It is declared that the defendant was held in pre-sentence custody for 241 days between 7 August 2012 and 4 April 2013”(ii)

adding “The period of 606 days is declared to be imprisonment already served under the sentence imposed”.(iii)

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 Reynolds [2013] QCA 368
PARTIES:	R v REYNOLDS, Isaiah Bahloo (applicant)
FILE NO/S:	CA No 110 of 2013 DC No 71 of 2013 DC No 124 of 2013 DC No 138 of 2013 DC No 292 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	10 December 2013
DELIVERED AT:	Brisbane
HEARING DATE:	6 September 2013
JUDGES:	Holmes and Fraser JJA and Margaret Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal against sentence is granted. 2. The appeal is allowed. 3. The sentence imposed below is varied by deleting the declaration that the applicant had been in pre-sentence custody for 265 days between 13 May 2011 and 1 February 2012 and substituting “It is declared that the defendant was held in pre‑sentence custody for 365 days between 13 May 2011 and 12 May 2012” (i) adding “It is declared that the defendant was held in pre-sentence custody for 241 days between 7 August 2012 and 4 April 2013”(ii) adding “The period of 606 days is declared to be imprisonment already served under the sentence imposed”.(iii)
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of being in premises and stealing and was sentenced to two years imprisonment – where the offences were committed during the operational period of an earlier term of imprisonment for four years, suspended after one year and during a three year period of probation which was combined with 12 months imprisonment – where the sentencing judge activated the three year balance of the period of suspended imprisonment, revoked the probation order and imposed concurrent sentences of four years for those offences – where the sentences of two years for the stealing offences were made cumulative on those sentences – where the sentencing judge calculated parole eligibility on the basis that the applicant should be eligible after serving one third of the two year sentences and half the four year sentences – whether the mitigating circumstances of admissions and an early plea which were taken into account when the four year sentences were originally imposed should have been taken into account when the suspended sentence was activated, so as to result in a parole eligibility date set at one third of the cumulative sentences – whether the resulting sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of being in premises and stealing and was sentenced to two years imprisonment – where the offences were committed during the operational period of an earlier term of imprisonment for four years, suspended after one year and…