R v Sharp - [2023] QCA 253

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sharp [2023] QCA 253

PARTIES:

R
v
SHARP, Leslie Gordon
(applicant)

FILE NO/S:

CA No 267 of 2022
CA No 286 of 2022
SC No 156 of 2022
SC No 61 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Townsville – Date of Sentence: 9 November 2022 (Callaghan J); Date of Sentence: 24 November 2022 (North J)

DELIVERED ON:

12 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

12 October 2023

JUDGES:

Morrison JA and Applegarth and Williams JJ

ORDERS:

1.   In CA 267 of 2022, leave to appeal against sentence is refused.

2.   In CA 286 of 2022, leave to appeal against sentence is refused.

3.    In CA 286 of 2022 the Verdict and Judgment Record be amended to record the period of pre-sentence custody as occurring between 18 February 2020 and 8 November 2022, and 995 days instead of 994.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to possessing property obtained by supply dangerous drugs (count 1), two counts of possessing a dangerous drug (counts 2 and 3), possessing a thing used in connection with supplying a dangerous drug (count 4) and one count of contravening orders about device information (count 5) – where the sentences imposed are to be served concurrently with each other and the other sentences the applicant was serving – where the applicant submitted that the pre-sentence custody and totality were not taken into account – where the applicant submitted that the sentencing judge failed to give due consideration to sentencing principles – whether the sentence was manifestly excessive when setting parole eligibility and full time discharge dates

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was convicted of arson while on parole for unrelated offences and was sentenced to two years imprisonment with an immediate parole eligibility date – where the arson sentence was to be served concurrently with the other sentences the applicant was already serving – whether the sentencing for arson should have been delayed until after the drug offences trial had occurred

Penalties and Sentences Act 1992 (Qld), s 9(2)(j), s 9(2)(l)

R v Eaton[2019] QCA 147, cited
R v Hill[2017] QCA 177, cited
R v Kendrick (2015) 249 A Crim R 176; [2015] QCA 27, cited

COUNSEL:

The applicant appeared on his own behalf
S L Dennis for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: On 8 November 2022 the applicant was convicted of arson following a trial in the Supreme Court at Townsville. That offence was committed on 10 August 2019, at which time the applicant was on parole for unrelated offences.
On 22 November 2022 the applicant pleaded guilty in the Supreme…

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 Sharp

Details

AGLC: R v Sharp [2023] QCA 253
Case: [2023] QCA 253
Decision Date: 12 December 2023

CaseChat Overview and Summary

In the matter of R v Sharp, the applicant appealed against the sentence imposed in two separate cases, CA 267 of 2022 and CA 286 of 2022, before the Queensland Court of Appeal. The applicant argued that the sentences were manifestly excessive, that the sentencing judge failed to give due consideration to the relevant sentencing principles, and that the delay in the trial should have impacted the sentencing for the arson offence. The Court had to determine whether the sentences were indeed manifestly excessive or inadequate, and if the sentencing judge had appropriately considered the relevant principles and factors.

The Court considered whether the sentence was manifestly excessive, taking into account the seriousness of the offence, the applicant's pre-sentence custody, and the sentences already imposed. The Court found that the sentences were not crushing but rather a reflection of the applicant's serious offending while on parole. The Court also examined whether the sentencing judge had failed to give due consideration to the relevant sentencing principles, such as the time spent in custody and the sentences already imposed on the applicant. The Court concluded that the sentencing judge had appropriately taken into account the relevant factors and that the sentence fell within the range supported by comparable authorities. Additionally, the Court reviewed whether the delay in the trial availability should have impacted the sentencing for the arson offence. The Court found that the applicant was serving existing sentences throughout the time of the suggested delay, and that there was no realistic prospect of a different outcome had the sentence taken place earlier.

The Court found that the applicant's appeal against the sentence was not successful. The concurrent sentences imposed were not manifestly excessive, and the sentencing judge had given due consideration to the relevant sentencing principles. The Court also noted a technical error in the recording of the period of pre-sentence custody and agreed with the Crown that it should be corrected. The Court ordered that the Verdict and Judgment Record be amended to accurately reflect the period of pre-sentence custody.

In conclusion, the Court refused the applicant's leave to appeal against the sentence in both CA 267 of 2022 and CA 286 of 2022. The Court also ordered that the Verdict and Judgment Record in CA 286 of 2022 be amended to record the period of pre-sentence custody as occurring between 18 February 2020 and 8 November 2022, and 995 days instead of 994.

Orders

Orders of the court

1. In CA 267 of 2022, leave to appeal against sentence is refused.

2. In CA 286 of 2022, leave to appeal against sentence is refused.

3. In CA 286 of 2022 the Verdict and Judgment Record be amended to record the period of pre-sentence custody as occurring between 18 February 2020 and 8 November 2022, and 995 days instead of 994.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view, it cannot be demonstrated that the sentences imposed were manifestly excessive.CA 286 of 2022 – error in the Verdict and Judgment Record The dates during which the applicant spent time in pre-sentence custody were incorrectly stated as “between 18 February 2020 and 7 November 2022”.[34] Given that the sentence was imposed on 9 November 2022, the relevant period was in fact until 8 November 2022. In other words, the time should have been calculated as 995 days, rather than the 994 as stated in the certificate. That led the learned sentencing judge in CA 286 of 2022 to state the incorrect period of pre-sentence custody. The same error appears in the Verdict and Judgment Record.[35][34]CA 286/2022, AB 114 line 15; AB 141.[35]CA 286 of 2022, AB 33. Though technical in nature and de minimis in its impact, the error should be corrected. Before this Court the Crown accepted that it was error that should be corrected by this Court rather than compelling the reopening of the sentence. Therefore, there should be an order that the Verdict and Judgment Record be amended to record the period served as between 18 February 2020 and 8 November 2022, and 995 days, rather than 994. I would therefore order:1.In CA 267 of 2022, leave to appeal against sentence is refused.2.In CA 286 of 2022, leave to appeal against sentence is refused.3.In CA 286 of 2022 the Verdict and Judgment Record be amended to record the period of pre-sentence custody as occurring between 18 February 2020 and 8 November 2022, and 995 days instead of 994. APPLEGARTH J: I agree with the reasons of, and the orders proposed by, Morrison JA. WILLIAMS J: I have read the draft reasons of Morrison JA in respect of both applications for leave to appeal against sentence and agree with the reasons and proposed orders.

Ratio Decidendi

Legal Principle Established

Given the matters above, the concurrent sentences imposed were not crushing but rather a reflection of the fact that the applicant’s offending was serious and while on parole. The parole eligibility date was set after the applicant had served four years of the 11-year head sentence (slightly more than one-third). Pre-sentence custody was reflected in the order that the sentences be concurrent.CA 267 of 2022 – failing to give due consideration to sentencing principles? The applicant contends the learned sentencing judge failed to have regard to the sentencing principles at s 9(2)(j) and (l) of the Penalties and Sentences Act 1992 (Qld), which oblige a sentencing court to have regard to: “(j)time spent in custody by the offender for the offence before being sentenced; and ...(l)sentences already imposed on the offender that have not been served.” This contention must be rejected. As explained above, there is no doubt that the learned sentencing judge took the applicant’s time spent in custody, and the sentences already imposed on the applicant, into account. The sentence fell within the range urged by the applicant’s counsel and supported by comparable authorities.[32] Further, there was the significant benefit of the sentence being concurrent with the other sentences and the setting of the parole eligibility date at only slightly greater than one-third of the head sentence.[32]The sentencing judge was referred to R v Ta [2018] QCA 342; R v Hieu Van Huynh [2003] QCA 371; R v Russell [2021] QCA 35 at [12]-[14]; R v Evelyn [2022] QCA 211; and R vLambert [2019] QCA 219.CA 267 of 2022 – failing to take into account delays in trial availability? The difficulty that this contention faces is that the applicant was serving existing sentences throughout the time of the suggested delay. In the face of that consideration, delays while waiting for a trial date are not persuasive. Further, in my view, there is no real reason to conclude that had the sentence taken place earlier there was a realistic prospect of a different outcome. The sentencing court could have exercised its discretion to order the sentence be imposed cumulatively on his 2018 sentence. In any event, the extra time delay was a factor taken into account when imposing the concurrent sentences.CA 267 of 2022 – manifestly excessive sentence? In R v Eaton[33] this Court said:“[71] In order to establish that the sentence is manifestly excessive, this Court must be satisfied that there ‘must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’. The mere fact the sentence imposed is different from other sentences, and even markedly different from other sentences, does establish that it is manifestly excessive. As was said by this Court R v MCT:‘To succeed on an application based on manifest excess, it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences imposed in other matters. It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is ‘unreasonable or plainly unjust’. Consistently with accepted understanding that there is no single correct sentence, judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies’”.[33][2019] QCA 147 at [71]. Internal citation omitted. See, more recently, R v Abdullah [2023] QCA 189 at [28].

CITATION:	R v Sharp [2023] QCA 253
PARTIES:	R v SHARP, Leslie Gordon (applicant)
FILE NO/S:	CA No 267 of 2022 CA No 286 of 2022 SC No 156 of 2022 SC No 61 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Townsville – Date of Sentence: 9 November 2022 (Callaghan J); Date of Sentence: 24 November 2022 (North J)
DELIVERED ON:	12 December 2023
DELIVERED AT:	Brisbane
HEARING DATE:	12 October 2023
JUDGES:	Morrison JA and Applegarth and Williams JJ
ORDERS:	1. In CA 267 of 2022, leave to appeal against sentence is refused. 2. In CA 286 of 2022, leave to appeal against sentence is refused. 3. In CA 286 of 2022 the Verdict and Judgment Record be amended to record the period of pre-sentence custody as occurring between 18 February 2020 and 8 November 2022, and 995 days instead of 994.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to possessing property obtained by supply dangerous drugs (count 1), two counts of possessing a dangerous drug (counts 2 and 3), possessing a thing used in connection with supplying a dangerous drug (count 4) and one count of contravening orders about device information (count 5) – where the sentences imposed are to be served concurrently with each other and the other sentences the applicant was serving – where the applicant submitted that the pre-sentence custody and totality were not taken into account – where the applicant submitted that the sentencing judge failed to give due consideration to sentencing principles – whether the sentence was manifestly excessive when setting parole eligibility and full time discharge dates CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was convicted of arson while on parole for unrelated offences and was sentenced to two years imprisonment with an immediate parole eligibility date – where the arson sentence was to be served concurrently with the other sentences the applicant was already serving – whether the sentencing for arson should have been delayed until after the drug offences trial had occurred Penalties and Sentences Act 1992 (Qld), s 9(2)(j), s 9(2)(l) R v Eaton[2019] QCA 147, cited R v Hill[2017] QCA 177, cited R v Kendrick (2015) 249 A Crim R 176; [2015] QCA 27, cited
COUNSEL:	The applicant appeared on his own behalf S L Dennis for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent