R v Stapleton - [2022] QCA 131

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stapleton [2022] QCA 131

PARTIES:

R
v
STAPLETON, Wayne Peter
(applicant)

FILE NO/S:

CA No 310 of 2021
SC No 6 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns – Date of Sentence: 12 November 2021 (Brown J)

DELIVERED ON:

Date of Orders: 19 July 2022
Date of Publication of Reasons: 29 July 2022

DELIVERED AT:

Brisbane

HEARING DATE:

19 July 2022

JUDGES:

Mullins P, Bond JA and Henry J

ORDERS:

Date of Orders: 19 July 2022

1.   Application for leave to appeal granted.

2.   Appeal allowed.

3.   Set aside the orders made by the sentencing judge, except for the orders in relation to the serious drug offence certificate and forfeiture order.

4.   Re-sentence the applicant as follows:

Count 1

Order that the applicant be imprisoned for a period of 12 months.

Count 2

Order that the applicant be imprisoned for a period of 4 years and 6 months and that the term of imprisonment be suspended after serving a period of 408 days imprisonment and the applicant must not commit another offence punishable by imprisonment within a period of 4 years 6 months, if the applicant is to avoid being dealt with for the suspended term of imprisonment.

Count 3

Order that the applicant be imprisoned for a period of 3 years and that the term of imprisonment be suspended after serving a period of 408 days imprisonment and the applicant must not commit another offence punishable by imprisonment within a period of 3 years, if the applicant is to avoid being dealt with for the suspended term of imprisonment.

5.   All sentences are concurrent.

6.   It is declared that 408 days spent in pre-sentence custody, namely 158 days between 26 April 2020 and 30 September 2020 and 250 days between 12 November 2021 and 19 July 2022, be deemed time already served under the sentences.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to one count of supplying methylamphetamine (count 1) and two counts of trafficking in methylamphetamine (counts 2 and 3) – where the applicant was sentenced to 18 months’ imprisonment for each of counts 1 and 3 and three and one-half years’ imprisonment for count 2 and the sentencing judge ordered “the term of imprisonment be suspended after serving a period of 15 months imprisonment” – where the sentence for count 3 was ordered to be served cumulatively upon counts 1 and 2 which were ordered to be served concurrently – where the verdict and judgment record could not reflect the sentencing judge’s intention – where the sentencing judge did not sentence in accordance with s 144 of the Penalties and Sentences Act 1992 (Qld) in imposing separate terms of imprisonment for each count and purporting to suspend part of the total period of the imprisonment of five years instead of imposing a sentence of suspended…

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.

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Details

Case: [2022] QCA 131
Decision Date: 29 July 2022

CaseChat Overview and Summary

The applicant, Stapleton, appealed against the sentence imposed by the sentencing judge, challenging the imposition of separate terms of imprisonment for each of the counts of which he was convicted. Stapleton had pleaded guilty to one count of supplying methylamphetamine and two counts of trafficking in methylamphetamine. He was sentenced to 18 months’ imprisonment for each of counts 1 and 3, and three and a half years’ imprisonment for count 2, with the term of imprisonment for counts 1 and 3 to be served concurrently and the term for count 3 to be served cumulatively. The sentencing judge ordered that the term of imprisonment be suspended after serving a period of 15 months imprisonment. The court of appeal was required to determine whether the sentencing judge had correctly imposed and suspended sentences for each count and whether the sentence was proportionate to the offending.

The court of appeal found that the sentencing judge had not correctly imposed the sentences in accordance with the requirements of the Penalties and Sentences Act 1992 (Qld). The sentencing judge had imposed separate terms of imprisonment for each count and purported to suspend part of the total period of the imprisonment of five years instead of imposing a sentence of suspended imprisonment for each count. The verdict and judgment record could not reflect the sentencing judge’s intention. The court of appeal also found that the sentence was not proportionate to the offending, taking into account the applicant’s culpability, the harm caused, and the need for deterrence and rehabilitation. The court of appeal allowed the appeal, set aside the orders made by the sentencing judge, and re-sentenced the applicant. The court of appeal ordered that the applicant be imprisoned for a period of 12 months for count 1, 4 years and 6 months for count 2, and 3 years for count 3, with the terms of imprisonment to be suspended after serving a period of 408 days imprisonment. The court of appeal also declared that the 408 days spent in pre-sentence custody be deemed time already served under the sentences.

The court of appeal’s decision highlights the importance of correctly imposing and suspending sentences in accordance with the law and of ensuring that sentences are proportionate to the offending. The court of appeal also emphasised the need for the verdict and judgment record to accurately reflect the sentencing judge’s intention. The court of appeal’s decision provides guidance to sentencing judges on how to impose and suspend sentences for multiple counts of offending and on the factors to consider when determining the appropriate sentence. The court of appeal’s decision also provides guidance to lawyers on the grounds for appealing against a sentence and on the remedies available in such appeals.

Orders

Orders of the court

Date of Orders: 19 July 2022

1. Application for leave to appeal granted.

2. Appeal allowed.

3. Set aside the orders made by the sentencing judge, except for the orders in relation to the serious drug offence certificate and forfeiture order.

4. Re-sentence the applicant as follows:

Count 1

Order that the applicant be imprisoned for a period of 12 months.

Count 2

Order that the applicant be imprisoned for a period of 4 years and 6 months and that the term of imprisonment be suspended after serving a period of 408 days imprisonment and the applicant must not commit another offence punishable by imprisonment within a period of 4 years 6 months, if the applicant is to avoid being dealt with for the suspended term of imprisonment.

Count 3

Order that the applicant be imprisoned for a period of 3 years and that the term of imprisonment be suspended after serving a period of 408 days imprisonment and the applicant must not commit another offence punishable by imprisonment within a period of 3 years, if the applicant is to avoid being dealt with for the suspended term of imprisonment.

5. All sentences are concurrent.

6. It is declared that 408 days spent in pre-sentence custody, namely 158 days between 26 April 2020 and 30 September 2020 and 250 days between 12 November 2021 and 19 July 2022, be deemed time already served under the sentences.

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 Stapleton [2022] QCA 131
PARTIES:	R v STAPLETON, Wayne Peter (applicant)
FILE NO/S:	CA No 310 of 2021 SC No 6 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Cairns – Date of Sentence: 12 November 2021 (Brown J)
DELIVERED ON:	Date of Orders: 19 July 2022 Date of Publication of Reasons: 29 July 2022
DELIVERED AT:	Brisbane
HEARING DATE:	19 July 2022
JUDGES:	Mullins P, Bond JA and Henry J
ORDERS:	Date of Orders: 19 July 2022 1. Application for leave to appeal granted. 2. Appeal allowed. 3. Set aside the orders made by the sentencing judge, except for the orders in relation to the serious drug offence certificate and forfeiture order. 4. Re-sentence the applicant as follows: Count 1 Order that the applicant be imprisoned for a period of 12 months. Count 2 Order that the applicant be imprisoned for a period of 4 years and 6 months and that the term of imprisonment be suspended after serving a period of 408 days imprisonment and the applicant must not commit another offence punishable by imprisonment within a period of 4 years 6 months, if the applicant is to avoid being dealt with for the suspended term of imprisonment. Count 3 Order that the applicant be imprisoned for a period of 3 years and that the term of imprisonment be suspended after serving a period of 408 days imprisonment and the applicant must not commit another offence punishable by imprisonment within a period of 3 years, if the applicant is to avoid being dealt with for the suspended term of imprisonment. 5. All sentences are concurrent. 6. It is declared that 408 days spent in pre-sentence custody, namely 158 days between 26 April 2020 and 30 September 2020 and 250 days between 12 November 2021 and 19 July 2022, be deemed time already served under the sentences.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to one count of supplying methylamphetamine (count 1) and two counts of trafficking in methylamphetamine (counts 2 and 3) – where the applicant was sentenced to 18 months’ imprisonment for each of counts 1 and 3 and three and one-half years’ imprisonment for count 2 and the sentencing judge ordered “the term of imprisonment be suspended after serving a period of 15 months imprisonment” – where the sentence for count 3 was ordered to be served cumulatively upon counts 1 and 2 which were ordered to be served concurrently – where the verdict and judgment record could not reflect the sentencing judge’s intention – where the sentencing judge did not sentence in accordance with s 144 of the Penalties and Sentences Act 1992 (Qld) in imposing separate terms of imprisonment for each count and purporting to suspend part of the total period of the imprisonment of five years instead of imposing a sentence of suspended…