R v SBG - [2008] QCA 59

SUPREME COURT OF QUEENSLAND

CITATION:

R v SBG [2008] QCA 59

PARTIES:

R
v
SBG
(applicant/appellant)

FILE NO/S:

CA No 286 of 2007
SC No 940 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

25 February 2008

JUDGES:

McMurdo P, Atkinson and Mullins JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    Application for leave to appeal granted

2.    Appeal allowed

3.    Vary the sentence imposed only by vacating the parole release date fixed on 22 July 2008 and instead substituting a parole release date fixed on 22 April 2008

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERAL PRINCIPLES – where applicant pleaded guilty to aiding a person to escape from lawful custody, supplying drugs within a correctional facility, unlawful supply of weapons and stealing as a servant – where applicant sentenced to three six month cumulative sentences for counts 1 and 4, 2 and 3 and 5 respectively with a parole release date after serving nine months – where applicant involved in failed plan to help a prisoner escape from a correctional facility – where applicant withdrew from plan before the plan was detected – where sentencing judge gave applicant a s 13A Penalties and Sentences Act reduction in sentence of 50 per cent for statements given to police implicating others in the plan – where applicant was a young man with real prospects of rehabilitation, showed remorse and assisted the administration of justice – whether sentencing judge erred in accumulating terms of imprisonment – whether sentencing judge erred in giving applicant only the s 13A reduction and no further reduction in sentence or parole release for other mitigating factors – whether the sentence is manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 13, s 13A

R v Webber (2000) 114 A Crim R 381; [2000] QCA 316, followed

COUNSEL:

R East for the appellant
M J Copley for the respondent

SOLICITORS:

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

McMURDO P: The applicant pleaded guilty on 22 October 2007 on an ex officio indictment to the following charges: conveying a thing to a person with the intention of aiding that person to escape from lawful custody (count 1), supplying dangerous drugs to a person within a correctional facility (counts 2 and 3), unlawful supply of weapons (count 4) and stealing as a servant (count 5). He was sentenced to six months imprisonment on count 2 and three months concurrent imprisonment on count 3. On each of counts 1 and 4 he was sentenced to six months concurrent imprisonment but this six month term was ordered to be served cumulatively on counts 2 and 3. He was sentenced to a further six months…

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 SBG

Details

AGLC: R v SBG [2008] QCA 59
Case: [2008] QCA 59
Decision Date: 20 March 2008

CaseChat Overview and Summary

The applicant in this case pleaded guilty to several serious offences, including aiding a person to escape from lawful custody, supplying drugs within a correctional facility, unlawful supply of weapons, and stealing as a servant. The case came before the court for appeal against the sentence imposed. The applicant had been sentenced to three six-month cumulative sentences, which were ordered to run consecutively, with a parole release date set after the applicant served nine months. The applicant argued that the sentencing judge had erred in accumulating the terms of imprisonment and in not applying a further reduction in sentence or parole release for other mitigating factors, despite the applicant's age, prospects of rehabilitation, remorse, and assistance to the administration of justice.

The legal issues before the court were whether the sentencing judge had erred in accumulating the terms of imprisonment and whether the sentence was manifestly excessive. The court considered the applicant's age, prospects of rehabilitation, remorse, and assistance to the administration of justice, as well as the fact that the applicant had withdrawn from the failed escape plan before it was detected. The court also considered the mitigating effect of the applicant's cooperation with the police, which resulted in a 50% reduction in sentence under section 13A of the Penalties and Sentences Act. The court found that the sentencing judge had erred in accumulating the terms of imprisonment and in not applying a further reduction in sentence or parole release for other mitigating factors.

The court allowed the appeal and varied the sentence imposed by vacating the parole release date fixed on 22 July 2008 and substituting a parole release date fixed on 22 April 2008. The court found that the sentence was manifestly excessive and that the sentencing judge had not taken into account all of the mitigating factors. The court also found that the applicant's age, prospects of rehabilitation, remorse, and assistance to the administration of justice were significant mitigating factors that should have been taken into account in determining the sentence. The court granted the application for leave to appeal and allowed the appeal, varying the sentence as described above.

Orders

Orders of the court

1. Application for leave to appeal granted

2. Appeal allowed

3. Vary the sentence imposed only by vacating the parole release date fixed on 22 July 2008 and instead substituting a parole release date fixed on 22 April 2008

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

Full text does not contain this section.

CITATION:	R v SBG [2008] QCA 59
PARTIES:	R v SBG (applicant/appellant)
FILE NO/S:	CA No 286 of 2007 SC No 940 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	20 March 2008
DELIVERED AT:	Brisbane
HEARING DATE:	25 February 2008
JUDGES:	McMurdo P, Atkinson and Mullins JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal granted 2. Appeal allowed 3. Vary the sentence imposed only by vacating the parole release date fixed on 22 July 2008 and instead substituting a parole release date fixed on 22 April 2008
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERAL PRINCIPLES – where applicant pleaded guilty to aiding a person to escape from lawful custody, supplying drugs within a correctional facility, unlawful supply of weapons and stealing as a servant – where applicant sentenced to three six month cumulative sentences for counts 1 and 4, 2 and 3 and 5 respectively with a parole release date after serving nine months – where applicant involved in failed plan to help a prisoner escape from a correctional facility – where applicant withdrew from plan before the plan was detected – where sentencing judge gave applicant a s 13A Penalties and Sentences Act reduction in sentence of 50 per cent for statements given to police implicating others in the plan – where applicant was a young man with real prospects of rehabilitation, showed remorse and assisted the administration of justice – whether sentencing judge erred in accumulating terms of imprisonment – whether sentencing judge erred in giving applicant only the s 13A reduction and no further reduction in sentence or parole release for other mitigating factors – whether the sentence is manifestly excessive Penalties and Sentences Act 1992 (Qld), s 13, s 13A R v Webber (2000) 114 A Crim R 381; [2000] QCA 316, followed
COUNSEL:	R East for the appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent