SUPREME COURT OF QUEENSLAND
CITATION:
R v Sargent [2016] QCA 32
PARTIES:
R
v
SARGENT, Jason Robert
(applicant)FILE NO/S:
CA No 204 of 2015
DC No 319 of 2015DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Ipswich – Date of Sentence: 4 September 2015DELIVERED ON:
23 February 2016
DELIVERED AT:
Brisbane
HEARING DATE:
2 February 2016
JUDGES:
Fraser JA and Daubney and Jackson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
Application refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was found guilty after trial of three counts of common assault (counts 2, 4, and 5), one count of grievous bodily harm (count 6) and one count of unlawful wounding (count 7) – where the applicant was sentenced to concurrent terms of imprisonment of six years on count 6, two and a half years on count 7 and twelve months on each of counts 2, 4, and 5 – where the applicant alleged that the sentence was manifestly excessive – where the applicant had made admissions to shorten the trial – where the applicant had been a victim of violence – where the applicant had no prior history for violence or relevant criminal history – where the applicant had suffered great hardship in jail – where the complainant had been going to the aid of another already assaulted by the applicant – where the injuries to the complainant giving rise to counts 6 and 7 were inflicted without premeditation – where the complainant suffered lacerations to the liver and pleura that if left untreated would have endangered his life – where the complainant suffered a laceration to his forearm which broke the true skin – where the complainant had since been unable to participate in many activities he used to enjoy – whether the effective sentence of six years imprisonment with parole eligibility after the custodial period of three years is manifestly excessive
R v Bryan; ex parte Attorney-General (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, considered
R v Dobinson[2006] QCA 357, considered
R v Galeano [2013] 2 Qd R 464; [2013] QCA 51, cited
R v Johnston[2004] QCA 12, considered
R v Kinersen-Smith & Connor; ex parte Attorney-General (Qld)[2009] QCA 153, cited
R v Norris [2012] QCA 57, considered
R v Tyson [2006] QCA 483, considered
R v W[2004] QCA 124, considered
Silvano v The Queen (2008) 184 A Crim R 593; [2008] NSWCCA 102, consideredCOUNSEL:
B J Power for the applicant
S J Farnden for the respondentSOLICITORS:
Potts Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent
FRASER JA: The applicant was charged on indictment with nine offences. After a ten day trial the jury found the applicant guilty…
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- AGLC
- R v Sargent [2016] QCA 32
- Case
- [2016] QCA 32
- Decision Date
CaseChat Overview and Summary
The primary issue for the court was whether the effective sentence of six years imprisonment with parole eligibility after the custodial period of three years was manifestly excessive. The court considered the nature of the offences, the applicant's personal circumstances, and the applicant's cooperation with the administration of justice. The court noted that the applicant had made admissions to shorten the trial and had been a victim of violence in the past. The court also considered the severity of the injuries inflicted on the complainant, who suffered lacerations to the liver and pleura that if left untreated would have endangered his life, as well as a laceration to his forearm which broke the true skin. The court found that the sentencing judge had taken into account the relevant mitigating factors, including the applicant's personal circumstances and his cooperation with the administration of justice. The court held that the sentence was not manifestly excessive.
The court further considered the applicant's argument that his suffering in prison warranted a lesser penalty. The court found that the applicant's suffering in prison, including a heart condition and a deformity to his finger, was not sufficient to justify a significant discount in the sentence. The court held that the sentence was not manifestly excessive.
Finally, the court considered whether the sentence was inadequate. The court found that the sentence reflected the seriousness of the offences and the need to protect the community and deter similar conduct in the future. The court held that the sentence was not inadequate.
ORDERS:
Application refused.
Orders
Orders of the court
Application 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
The sentencing judge summarised the circumstances of the offences and the applicant’s personal circumstances. He remarked that there was no justification whatsoever for the applicant to have acted in the appalling way that he did towards Ms Brimble. The sentencing judge referred to statements in a Court of Appeal decision that protection of the community was crucial and deterrence was a major consideration when sentencing. This was a vicious, unprovoked assault with a knife and the applicant had shown little, if any, remorse. Although Ms Brimble did not supply a victim impact statement, the sentencing judge considered that there was no doubt that she would have suffered a significantly negative impact as a result of the applicant striking her head so forcefully that she fell backwards. The sentencing judge accepted that prison had been a terrible struggle for the applicant.Consideration The applicant argued that his personal circumstances and his cooperation with the administration of justice, by making admissions and conducting the trial efficiently, warranted a lesser penalty than might otherwise be appropriate. That the applicant did not have relevant previous convictions was of course a relevant consideration for the sentencing judge. The sentencing judge’s remarks indicate that it was taken into account. The circumstance that the applicant himself had been the subject of serious violence many years earlier could also be taken into account, but it was open to the sentencing judge to conclude that this did not merit a significant reduction in the sentence. The respondent acknowledged that at the trial the applicant tested the evidence of the complainant and did not attempt to blacken the complainant’s character, and that the admissions made by the applicant narrowed the evidence. The applicant did not contest the submission for the respondent that the conduct of the cross-examination and the making of the admissions would not have escaped the primary judge. The applicant did not submit that these matters were not taken into account in the sentence. The respondent argued that the efficient conduct of the trial, including the making of admissions about non-contentious matters, should be recognised as a basic level of cooperation with the administration of justice. That may be so, but a sentencing judge may give some credit for such matters, at least to reflect their utilitarian value in the administration of justice. The respondent also submitted that these matters were small considerations which would not justify a substantial reduction in the sentence. I accept that, having regard to the seriousness of the applicant’s offences, such a view was open to the sentencing judge. The sentencing judge also took into account that prison was unusually difficult for the applicant. In relation to the damage to the applicant’s heart which he suffered whilst in prison, the respondent submitted that there was no established causal link between that injury and the applicant’s offending, so that the attack in prison should not be considered as extra-curial punishment.[2] I would nevertheless accept that, if the injury to the heart would make prison harder for the applicant that could be taken into account in mitigation of the sentence.[3] However, in the context of these serious offences the circumstance mentioned by the applicant’s counsel that the applicant suffered chest pain, for which he was not treated over a number of weeks and was later hospitalised, was insufficient to justify a significant discount in the applicant’s sentence. Similarly, there was no evidence about the significance of the deformity to the applicant’s finger. That incident too, whilst it could be taken into account by the sentencing judge, could not be thought to justify a significant discount in the sentence.[2]Silvano v The Queen (2008) 184 A Crim R 593 at [24]- [35] per James J.[3]R v Galeano [2013] 2 Qd R 464 at [51] per Gotterson JA with McMurdo P agreeing.