R v SCM - [2016] QCA 175

SUPREME COURT OF QUEENSLAND

CITATION:

R v SCM [2016] QCA 175

PARTIES:

R
v
SCM
(applicant)

FILE NO/S:

CA No 5 of 2016
DC No 556 of 2015
DC No 524 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns – Date of Sentence: 8 December 2015

DELIVERED ON:

24 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

31 May 2016

JUDGES:

Margaret McMurdo P and Philippides JA and North 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 is granted.

2.   The appeal is allowed to the extent of setting aside the sentences imposed on 8 December 2015 for the offences of unlawful stalking and failing to appear in accordance with an undertaking and, in lieu thereof, the following sentences are imposed:

(a)   A sentence of two and a half years for the offence of unlawful stalking, with a declaration pursuant s 159A of the Penalties and Sentences Act 1992 that 236 days spent in pre-sentence custody between 16 April 2015 and 7 December 2015 inclusive be taken to be time served under that sentence.

(b)   A conviction is recorded but no further punishment is imposed for the failing to appear.

(c)    It is ordered that the applicant be released on parole on 22 January 2016 in lieu of 16 February 2016.

(d)   Otherwise confirm the sentences imposed by the sentencing judge.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted upon his plea of guilty of one count of unlawful stalking with a circumstance of aggravation along with 20 summary offences – where one of the summary offences was failing to appear in accordance with an undertaking – where the applicant was sentenced to two years imprisonment for the stalking offence, six months imprisonment to be served cumulatively upon the two year term imposed for the stalking offence for the failure to appear and concurrent sentences of one to six months imprisonment in relation to the other summary offences – where the applicant contended the sentence was manifestly excessive due to the imposition of a six month cumulative sentence for the failure to appear – whether the sentence was manifestly excessive

Bail Act 1980 (Qld), s 33(4), 35(2)
Penalties and Sentences Act 1992 (Qld), s 159A

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
R v Baker[2011] QCA 33, considered
R v Macdonald[2008] QCA 384, cited
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited

COUNSEL:

V P Keegan for the applicant
N W Crane for the respondent

SOLICITORS:

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

MARGARET McMURDO P: I agree with Philippides JA’s reasons and proposed orders.
PHILIPPIDES JA: On 8 December 2015, the applicant…

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 SCM

Details

AGLC: R v SCM [2016] QCA 175
Case: [2016] QCA 175
Decision Date: 24 June 2016

CaseChat Overview and Summary

The applicant, SCM, was convicted upon his plea of guilty of one count of unlawful stalking with a circumstance of aggravation and 20 summary offences. SCM was sentenced to two years imprisonment for the stalking offence, with an additional six months imprisonment to be served cumulatively upon the two year term for the failure to appear in accordance with an undertaking. SCM also received concurrent sentences of one to six months imprisonment in relation to the other summary offences. SCM appealed against his sentence, contending it was manifestly excessive due to the imposition of the six month cumulative sentence for the failure to appear. The appeal was brought before the court which had to determine whether the sentence was manifestly excessive.

The court examined the sentencing principles and the relevant legislation to determine whether the sentence was manifestly excessive. The court noted that the sentence for the stalking offence was within the maximum penalty prescribed by law, and the cumulative sentence for the failure to appear was also within the maximum penalty for that offence. The court also considered the cumulative effect of the sentences and whether they were manifestly excessive having regard to the circumstances of the case. The court concluded that the sentence for the stalking offence was not manifestly excessive, but the cumulative sentence for the failure to appear was manifestly excessive.

The application for leave to appeal was granted and the appeal was allowed to the extent of setting aside the sentences imposed on 8 December 2015 for the offences of unlawful stalking and failing to appear in accordance with an undertaking. In lieu thereof, the following sentences were imposed: (a) a sentence of two and a half years for the offence of unlawful stalking, with a declaration that 236 days spent in pre-sentence custody be taken to be time served under that sentence; (b) a conviction is recorded but no further punishment is imposed for the failing to appear; (c) it is ordered that the applicant be released on parole on 22 January 2016 in lieu of 16 February 2016; and (d) otherwise confirm the sentences imposed by the sentencing judge.

Orders

Orders of the court

1. The application for leave to appeal is granted.

2. The appeal is allowed to the extent of setting aside the sentences imposed on 8 December 2015 for the offences of unlawful stalking and failing to appear in accordance with an undertaking and, in lieu thereof, the following sentences are imposed:

(a) A sentence of two and a half years for the offence of unlawful stalking, with a declaration pursuant s 159A of the Penalties and Sentences Act 1992 that 236 days spent in pre-sentence custody between 16 April 2015 and 7 December 2015 inclusive be taken to be time served under that sentence.

(b) A conviction is recorded but no further punishment is imposed for the failing to appear.

(d) Otherwise confirm the sentences imposed by the sentencing judge.

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 SCM [2016] QCA 175
PARTIES:	R v SCM (applicant)
FILE NO/S:	CA No 5 of 2016 DC No 556 of 2015 DC No 524 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns – Date of Sentence: 8 December 2015
DELIVERED ON:	24 June 2016
DELIVERED AT:	Brisbane
HEARING DATE:	31 May 2016
JUDGES:	Margaret McMurdo P and Philippides JA and North 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 is granted. 2. The appeal is allowed to the extent of setting aside the sentences imposed on 8 December 2015 for the offences of unlawful stalking and failing to appear in accordance with an undertaking and, in lieu thereof, the following sentences are imposed: (a) A sentence of two and a half years for the offence of unlawful stalking, with a declaration pursuant s 159A of the Penalties and Sentences Act 1992 that 236 days spent in pre-sentence custody between 16 April 2015 and 7 December 2015 inclusive be taken to be time served under that sentence. (b) A conviction is recorded but no further punishment is imposed for the failing to appear. (c) It is ordered that the applicant be released on parole on 22 January 2016 in lieu of 16 February 2016. (d) Otherwise confirm the sentences imposed by the sentencing judge.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted upon his plea of guilty of one count of unlawful stalking with a circumstance of aggravation along with 20 summary offences – where one of the summary offences was failing to appear in accordance with an undertaking – where the applicant was sentenced to two years imprisonment for the stalking offence, six months imprisonment to be served cumulatively upon the two year term imposed for the stalking offence for the failure to appear and concurrent sentences of one to six months imprisonment in relation to the other summary offences – where the applicant contended the sentence was manifestly excessive due to the imposition of a six month cumulative sentence for the failure to appear – whether the sentence was manifestly excessive Bail Act 1980 (Qld), s 33(4), 35(2) Penalties and Sentences Act 1992 (Qld), s 159A Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Baker[2011] QCA 33, considered R v Macdonald[2008] QCA 384, cited R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited
COUNSEL:	V P Keegan for the applicant N W Crane for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent