R v Sellies-Cullen - [2023] QCA 247

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sellies-Cullen [2023] QCA 247

PARTIES:

R
v
SELLIES-CULLEN, Corey Mitchell
(applicant)

FILE NO/S:

CA No 68 of 2023
DC No 403 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore – Date of Sentence: 27 March 2023 (Cash KC DCJ)

DELIVERED ON:

8 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

24 October 2023

JUDGES:

Flanagan and Boddice JJA and Martin SJA

ORDER:

The application is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to armed robbery and grievous bodily harm – where a serious violent offence was declared with respect to the grievous bodily harm – where the applicant contended the sentence was manifestly excessive on the basis that the community’s condemnation of the conduct could have been adequately reflected by the imposition of an alternative sentence – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 161A, s 161B

R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80; [2020] QCA 58, considered
R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, considered

COUNSEL:

S R Lewis for the applicant
S L Dennis for the respondent

SOLICITORS:

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

FLANAGAN JA: I agree with Martin SJA.
BODDICE JA: I agree with Martin SJA.
MARTIN SJA: On 27 March 2023, the applicant pleaded guilty to three counts and the following sentences were imposed:

Count 1 – Armed robbery. That on the 20^th day of April 2022 at Nambour he robbed Michael Gregory, and he was armed with an offensive instrument, namely a knife. Three years imprisonment to be served concurrently with any other term of imprisonment imposed.

Count 2 – Grievous bodily harm. That on the same day he unlawfully did grievous bodily harm to Michael Gregory. Six years imprisonment to be served concurrently with any other term of imprisonment imposed. Count 2 is declared to be a serious violent offence.

Summary Charge 1 – Possessing a knife in a public place. That on the 21^st day of April 2022 at Maroochydore, he without reasonable excuse physically possessed a knife in a public place. Six months imprisonment to be served concurrently with any other term of imprisonment imposed.

The applicant seeks leave to appeal against the sentence imposed in respect of Count 2 on the basis that it was manifestly excessive in all the circumstances.
The nature of the offences
On 20 April 2022, the applicant was walking with a group of other young people on a street in Nambour when he came across the complainant. The complainant was a 41-year-old man who was homeless and all of whose possessions were contained in his backpack. The group taunted and threatened the complainant and he walked away. The applicant then separated from…

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 Sellies-Cullen

Details

AGLC: R v Sellies-Cullen [2023] QCA 247
Case: [2023] QCA 247
Decision Date: 8 December 2023

CaseChat Overview and Summary

The case of R v Sellies-Cullen involved an appeal against sentence by the applicant, who had pleaded guilty to armed robbery and grievous bodily harm. The primary issue before the court was whether the sentence imposed on the applicant was manifestly excessive. The applicant argued that the community’s condemnation of the conduct could have been adequately reflected by the imposition of an alternative sentence.

The court considered the nature of the offences and the principles underlying the declaration of a serious violent offence as stipulated in the Penalties and Sentences Act 1992 (Qld). The court examined whether the declaration of a serious violent offence with respect to the grievous bodily harm warranted a sentence that required the applicant to serve 80% of the head sentence before being eligible for parole. The court referenced previous cases such as R v Free; Ex parte Attorney-General (Qld) and R v McDougall and Collas, which highlighted that the discretion to make such a declaration is part of the integrated process of arriving at a just sentence and is not necessarily limited to the most serious cases. The court also noted that the declaration should usually be reserved for more serious offences that warrant it and that the overall sentence should be appropriate given the circumstances.

The court concluded that the sole basis for the applicant’s assertion that the sentence was manifestly excessive was the declaration of a serious violent offence. The court found that the sentence was not manifestly excessive as it was within the appropriate range for such an offence, considering the need for a substantial period of imprisonment to reflect the community’s condemnation of the conduct. Therefore, the application for a new trial was refused.

Orders

Orders of the court

The application is refused.

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

The sole basis for the applicant’s assertion that the sentence was manifestly excessive was the declaration of a serious violent offence. That declaration had the effect of postponing any release on parole until 80% of the six-year head sentence had been served.The principles which inform the making of a declaration of a Serious Violent Offence The discretion to make such a declaration arises from s 161A and s 161B of the Penalties and Sentences Act 1992 (Qld): “161A When an offender is convicted of a serious violent offenceAn offender is convicted of a serious violent offence if—(a)the offender is—(i) convicted on indictment of an offence—(A)against a provision mentioned in schedule 1; or(B)of counselling or procuring the commission of, or attempting or conspiring to commit, an offence against a provision mentioned in schedule 1; and(ii) sentenced to 10 or more years imprisonment for the offence, calculated under section 161C; or(b)the offender is convicted on indictment and declared to be convicted of a serious violent offence under section 161B(3) or (4).161B Declaration of conviction of serious violent offence(1)If an offender is convicted of a serious violent offence under section 161A(a), the sentencing court must declare the conviction to be a conviction of a serious violent offence as part of the sentence.(2)However, the failure of the sentencing court to make a declaration as required under subsection (1) does not affect the fact that the offender has been convicted of a serious violent offence.(3)If an offender is—(a) convicted on indictment of an offence—(i)against a provision mentioned in schedule 1; or (ii)of counselling or procuring the commission of, or attempting or conspiring to commit, an offence against a provision mentioned in schedule 1; and (b) sentenced to 5 or more, but less than 10, years imprisonment for the offence, calculated under section 161C; the sentencing court may declare the offender to be convicted of a serious violent offence as part of the sentence.(4) Also, if an offender is—(a) convicted on indictment of an offence—(i)that involved the use, counselling or procuring the use, or conspiring or attempting to use, serious violence against another person; or(ii)that resulted in serious harm to another person; and(b) sentenced to a term of imprisonment for the offence;the sentencing court may declare the offender to be convicted of a serious violent offence as part of the sentence.…” In R v Free; Ex parte Attorney-General (Qld),[1] the Court of Appeal considered matters relevant to the making of a declaration and referred to the observations of the court in R v McDougall and Collas.[2] Both of those decisions emphasised that the discretion to make a declaration falls to be exercised as part of the integrated process of arriving at a just sentence. It is not necessarily limited to cases falling outside a so-called “norm” for a particular offence.[1](2020) 4 QR 80.[2][2007] 2 Qd R 87. The following statements from R v McDougall and Collas assist in considering whether a sentence is manifestly excessive:(a)a critical matter is whether the offence has features warranting a sentence requiring the offender to serve 80% of the head sentence before being able to apply for parole;(b)the overall amount of imprisonment to be imposed should be arrived at having regard to whether a declaration is made or not;(c)the considerations able to be taken into account in the exercise of the discretion are the same as those which may be taken into account in relation to other aspects of sentencing;(d)it will usually be necessary that declarations be reserved for the more serious offences that, by their nature, warrant them; and(e)a critical question will be whether the sentence with a declaration is manifestly excessive in the circumstances – it follows that a just sentence may require that the sentence imposed for a declared serious violence offence be toward the lower end of the general range of sentences imposed for such an offence.

CITATION:	R v Sellies-Cullen [2023] QCA 247
PARTIES:	R v SELLIES-CULLEN, Corey Mitchell (applicant)
FILE NO/S:	CA No 68 of 2023 DC No 403 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maroochydore – Date of Sentence: 27 March 2023 (Cash KC DCJ)
DELIVERED ON:	8 December 2023
DELIVERED AT:	Brisbane
HEARING DATE:	24 October 2023
JUDGES:	Flanagan and Boddice JJA and Martin SJA
ORDER:	The application is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to armed robbery and grievous bodily harm – where a serious violent offence was declared with respect to the grievous bodily harm – where the applicant contended the sentence was manifestly excessive on the basis that the community’s condemnation of the conduct could have been adequately reflected by the imposition of an alternative sentence – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 161A, s 161B R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80; [2020] QCA 58, considered R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, considered
COUNSEL:	S R Lewis for the applicant S L Dennis for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

Count 1 – Armed robbery. That on the 20^th day of April 2022 at Nambour he robbed Michael Gregory, and he was armed with an offensive instrument, namely a knife.	Three years imprisonment to be served concurrently with any other term of imprisonment imposed.
Count 2 – Grievous bodily harm. That on the same day he unlawfully did grievous bodily harm to Michael Gregory.	Six years imprisonment to be served concurrently with any other term of imprisonment imposed. Count 2 is declared to be a serious violent offence.
Summary Charge 1 – Possessing a knife in a public place. That on the 21^st day of April 2022 at Maroochydore, he without reasonable excuse physically possessed a knife in a public place.	Six months imprisonment to be served concurrently with any other term of imprisonment imposed.