R v Stevens - [2006] QCA 361

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stevens [2006] QCA 361

PARTIES:

R
v
STEVENS, Robert Wayne
(applicant)

FILE NO/S:

CA No 256 of 2005
DC No 2782 of 2005
DC No 2305 of 2001
DC No 26 of 2000
DC No 27 of 2000
DC No 2748 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 September 2006

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2006

JUDGES:

McMurdo P, Wilson and Douglas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - GENERALLY - where applicant spent 250 days in pre-sentence custody but sentencing judge in 2001 was unable to declare this period as time already served in relation to the relevant offences - where judge nevertheless took this period into account in determining head sentence and in ordering its suspension 250 days short of two years - whether undeclared 250 days of pre-sentence custody made it unjust for the sentencing judge in 2005 to order that applicant serve entire remaining suspended term of imprisonment imposed in 2001 - whether sentence was manifestly excessive in all the circumstances

Penalties and Sentences Act 1992 (Qld), s 147, s 161, s 188

COUNSEL:

Applicant appeared on his own behalf
C W Heaton for respondent

SOLICITORS:

Applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for respondent

McMURDO P: The applicant pleaded guilty before his Honour Judge Howell on 23 September 2005 to two counts of fraud (counts 1 and 2), one count of stealing (count 3), two counts of unlawful stalking with a circumstance of aggravation (counts 4 and 5) and eight summary offences. All but count 1, which occurred in August 2001, were committed between February and October 2004 during the operational period of a suspended sentence imposed by his Honour Judge O'Brien on 28 August 2001 for 16 counts of passing valueless cheques, seven counts of fraud, nine counts of false pretences, one count of common assault, one count of wilful damage, one count of aggravated fraud, one count of unlawful use of a motor vehicle, three counts of breaching a domestic violence order, three counts of breaching the Bail Act 1980 (Qld) and one count of possession of tainted property. Judge Howell ordered that the applicant serve the remaining unserved terms of the suspended sentences imposed by Judge O'Brien of three years and 250 days. On counts 4 and 5 on the new indictment he was sentenced to 25 months imprisonment to be suspended after four months with an operational period of 25 months and to lesser concurrent terms of imprisonment for counts 1 to 3. He was convicted and not further punished on the…

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 Stevens

Details

AGLC: R v Stevens [2006] QCA 361
Case: [2006] QCA 361
Decision Date: 22 September 2006

CaseChat Overview and Summary

The applicant, Stevens, appealed against his sentence following a conviction for drug-related offences. The primary dispute in this case was whether the 250 days spent in pre-sentence custody, which the sentencing judge in 2001 could not declare as time already served, rendered the sentence imposed in 2005 unjust and manifestly excessive. Stevens argued that the original sentence, which was suspended for a period that did not account for the undeclared pre-sentence custody, was unfair. The Court of Appeal was tasked with determining the validity of the sentence and the applicant's appeal.

The legal issues before the court included whether the 250 days of undeclared pre-sentence custody should have influenced the sentence imposed in 2005 and whether the sentence was manifestly excessive given the circumstances. The court had to consider whether the original sentence, despite not explicitly accounting for the undeclared custody, was still fair and appropriate. Additionally, the court examined the relevant provisions of the Penalties and Sentences Act 1992 (Qld) to determine if the sentence imposed complied with the statutory requirements and if it was reasonable in light of the applicant's pre-sentence detention.

The Court of Appeal held that the sentencing judge had properly considered the undeclared pre-sentence custody in determining the head sentence and ordering its suspension. The court found that the judge had taken into account the 250 days in pre-sentence custody, even though it could not be formally declared as time already served. The court also concluded that the sentence was not manifestly excessive given the nature of the offences and the principles of sentencing. The court was satisfied that the sentencing judge had appropriately balanced all relevant factors and that the sentence reflected a fair and proportionate response to the crimes committed.

Given the findings, the Court of Appeal refused the application for leave to appeal against the sentence. The decision underscored the importance of the sentencing judge's discretion and the principle that the sentence should be proportionate to the offence, taking into account all relevant factors, including any periods of pre-sentence custody.

Orders

Orders of the court

Application for leave to appeal against sentence 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 Stevens [2006] QCA 361
PARTIES:	R v STEVENS, Robert Wayne (applicant)
FILE NO/S:	CA No 256 of 2005 DC No 2782 of 2005 DC No 2305 of 2001 DC No 26 of 2000 DC No 27 of 2000 DC No 2748 of 1998
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	22 September 2006
DELIVERED AT:	Brisbane
HEARING DATE:	28 August 2006
JUDGES:	McMurdo P, Wilson and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - GENERALLY - where applicant spent 250 days in pre-sentence custody but sentencing judge in 2001 was unable to declare this period as time already served in relation to the relevant offences - where judge nevertheless took this period into account in determining head sentence and in ordering its suspension 250 days short of two years - whether undeclared 250 days of pre-sentence custody made it unjust for the sentencing judge in 2005 to order that applicant serve entire remaining suspended term of imprisonment imposed in 2001 - whether sentence was manifestly excessive in all the circumstances Penalties and Sentences Act 1992 (Qld), s 147, s 161, s 188
COUNSEL:	Applicant appeared on his own behalf C W Heaton for respondent
SOLICITORS:	Applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for respondent