R v SEB - [2023] QCA 69

SUPREME COURT OF QUEENSLAND

CITATION:

R v SEB [2023] QCA 69

PARTIES:

R
v
SEB
(applicant)

FILE NO/S:

CA No 52 of 2022
SC No 1522 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 11 March 2022 (Ryan J)

DELIVERED ON:

21 April 2023

DELIVERED AT:

Brisbane

HEARING DATE:

13 April 2023

JUDGES:

Dalton and Boddice JJA and Crow J

ORDER:

The Application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pled guilty to a single count of malicious act with intent to cause grievous bodily harm (domestic violence offence) – where a sentence of seven years imprisonment with a serious violent offender declaration was imposed – where the applicant and complainant are refugees from Afghanistan – where the applicant had a difficult upbringing and adult life in Afghanistan – where the applicant arrived in Australia in 2012 as an “irregular maritime arrival” and was granted a temporary protection visa in 2016 – where the applicant stabbed the complainant in the neck and face and threatened to kill her – where the offending took place in the complainant’s home in front of her two children – where the two children intervened to push the applicant away from the complainant – where the applicant’s protection visa had been revoked because of his offending – where the sentencing judge assumed that the applicant would not be granted parole and would serve the entirety of any sentence imposed in prison before being taken to an immigration detention centre where he would be held while a search for a suitable deportation destination was made – where the applicant could not be returned to Afghanistan due to his refugee status – where there will likely be a lengthy delay before a suitable location is found to which to deport the applicant – where the only way to mitigate the head sentence to account for the applicant’s plea and early-childhood circumstances was through moderation of the head sentence – where the Court must consider a domestic violence offence as an aggravating factor in determining an appropriate sentence – whether the sentence imposed was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(10A)

R v Gatti[2018] QCA 98, considered
R v GBD [2018] 50 QLR; [2018] QCA 340, cited
R v Lyon[2006] QCA 146, considered
R v Norris [2018] 3 Qd R 420; [2018] QCA 27, considered
R v O’Sullivan; Ex parte Attorney-General (Qld); R v Lee; Ex parte Attorney-General (Qld) (2019) 3 QR 196; [2019] QCA 300, considered
R v Oakes[2012] QCA 336, considered

COUNSEL:

D M Caruana for the applicant
M P Le Grand for the respondent

SOLICITORS:

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

DALTON JA: The applicant seeks leave to…

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 SEB

Details

AGLC: R v SEB [2023] QCA 69
Case: [2023] QCA 69
Decision Date: 21 April 2023

CaseChat Overview and Summary

The appellant, an Afghan national and refugee, was convicted of a single count of a malicious act with intent to cause grievous bodily harm in the context of domestic violence. The victim, who also arrived in Australia as a refugee, was stabbed in the neck and face in front of her two children by the appellant. The children intervened and managed to separate the appellant from the victim. The appellant pleaded guilty to the offence and was sentenced to seven years imprisonment, with a declaration of being a serious violent offender. The appellant's protection visa was revoked due to the offending and, because he cannot be returned to Afghanistan, he faces a lengthy delay in deportation proceedings. The appellant appealed the sentence on the basis that it was manifestly excessive.

The primary legal issue was whether the sentence imposed by the sentencing judge was manifestly excessive, taking into account the appellant's plea of guilty, his difficult upbringing, and the circumstances of the offence. The court considered whether the sentence was appropriate in light of the need for general and specific deterrence, and whether there were any other mitigating factors that warranted a lesser sentence. The court also considered the appellant's refugee status and the potential delay in deportation proceedings.

The court found that the sentence was not manifestly excessive. It noted that the appellant had pleaded guilty, which warranted a discount on the head sentence. The court also acknowledged the appellant's difficult upbringing and early-childhood circumstances, but found that these were insufficient to warrant a substantial reduction in the sentence. The court found that the offence was an aggravating factor in determining an appropriate sentence, and that the sentence imposed was within the range of sentences that could be considered appropriate for the offence. The court also noted that the appellant's protection visa had been revoked and that he faced a lengthy delay in deportation proceedings, which warranted a longer sentence.

The application for leave to appeal against sentence was refused.

Orders

Orders of the court

The Application for leave to appeal against sentence is 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

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CITATION:	R v SEB [2023] QCA 69
PARTIES:	R v SEB (applicant)
FILE NO/S:	CA No 52 of 2022 SC No 1522 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 11 March 2022 (Ryan J)
DELIVERED ON:	21 April 2023
DELIVERED AT:	Brisbane
HEARING DATE:	13 April 2023
JUDGES:	Dalton and Boddice JJA and Crow J
ORDER:	The Application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pled guilty to a single count of malicious act with intent to cause grievous bodily harm (domestic violence offence) – where a sentence of seven years imprisonment with a serious violent offender declaration was imposed – where the applicant and complainant are refugees from Afghanistan – where the applicant had a difficult upbringing and adult life in Afghanistan – where the applicant arrived in Australia in 2012 as an “irregular maritime arrival” and was granted a temporary protection visa in 2016 – where the applicant stabbed the complainant in the neck and face and threatened to kill her – where the offending took place in the complainant’s home in front of her two children – where the two children intervened to push the applicant away from the complainant – where the applicant’s protection visa had been revoked because of his offending – where the sentencing judge assumed that the applicant would not be granted parole and would serve the entirety of any sentence imposed in prison before being taken to an immigration detention centre where he would be held while a search for a suitable deportation destination was made – where the applicant could not be returned to Afghanistan due to his refugee status – where there will likely be a lengthy delay before a suitable location is found to which to deport the applicant – where the only way to mitigate the head sentence to account for the applicant’s plea and early-childhood circumstances was through moderation of the head sentence – where the Court must consider a domestic violence offence as an aggravating factor in determining an appropriate sentence – whether the sentence imposed was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9(10A) R v Gatti[2018] QCA 98, considered R v GBD [2018] 50 QLR; [2018] QCA 340, cited R v Lyon[2006] QCA 146, considered R v Norris [2018] 3 Qd R 420; [2018] QCA 27, considered R v O’Sullivan; Ex parte Attorney-General (Qld); R v Lee; Ex parte Attorney-General (Qld) (2019) 3 QR 196; [2019] QCA 300, considered R v Oakes[2012] QCA 336, considered
COUNSEL:	D M Caruana for the applicant M P Le Grand for the respondent
SOLICITORS:	Guest Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent