R v Stokes - [2016] QCA 157

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stokes [2016] QCA 157

PARTIES:

R
v
STOKES, Joel Wade
(applicant)

FILE NO/S:

CA No 226 of 2015
DC No 934 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 28 August 2015

DELIVERED ON:

14 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2016

JUDGES:

Margaret McMurdo P and Gotterson JA and Bond J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Grant the application for leave to appeal.

2.   Allow the appeal by varying the sentence so that the parole release date is fixed at 20 June 2016.

3.   Otherwise confirm the sentence imposed at first instance.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was sentenced to two years and eight months for an offence of armed robbery in company and short concurrent terms of imprisonment for three drug offences – where the applicant had served 35 days of an unrelated six month sentence at the time of the robbery sentence – where the applicant had spent 33 days in pre-sentence custody which could not be declared as time served under the sentence – where the primary judge took these two periods of custody into consideration when framing a just head sentence but failed to take them into account when setting the parole eligibility date

COUNSEL:

The applicant appeared on his own behalf
S J Farnden for the respondent

SOLICITORS:

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

MARGARET McMURDO P: The applicant pleaded guilty on 28 August 2015 to armed robbery in company on 21 November 2012 and to two counts of possessing a dangerous drug and one of supplying a dangerous drug, all on 29 January 2015. He was sentenced on the armed robbery offence to two years and eight months imprisonment and on the drug offences to short concurrent terms of imprisonment. The judge fixed the parole release date at 28 August 2016, that is, after 12 months. He has applied for leave to appeal only in respect of his sentence on the armed robbery offence which he claims was manifestly excessive.
The applicant’s antecedents
The applicant was 24 at the time of the armed robbery offence; 26 at the time of the drug offences; and 27 at sentence. He had entries in his criminal history prior to the armed robbery offence for street offences, and in October 2011, was fined without conviction for drug and property offences. He had a significant subsequent criminal history. In May 2014 he was fined without conviction for drug offences. In August 2014 he was arrested for breach of bail in this matter and in September 2014 he was convicted and fined for breaching his bail. In November 2014 he was convicted and sentenced to four months…

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 Stokes

Details

AGLC: R v Stokes [2016] QCA 157
Case: [2016] QCA 157
Decision Date: 14 June 2016

CaseChat Overview and Summary

The case of R v Stokes involved an appeal against the sentence handed down for armed robbery in company and related drug offences. Stokes had served 35 days of an unrelated six-month sentence and 33 days in pre-sentence custody at the time of sentencing for the robbery and drug offences. The primary judge took these periods of custody into consideration when framing the sentence but failed to take them into account when setting the parole eligibility date. The Court of Appeal was asked to determine whether the judge had erred in this regard.

The legal issue before the court was whether the judge had erred in not also giving credit for the periods of custody in setting the parole eligibility date. The court noted that the primary judge had appropriately reduced the head sentence to two years and eight months to take into account the periods of custody that could not be declared as time served. However, the court found that it was logical and appropriate to also reflect this in setting the parole eligibility date. The court held that the judge had indeed erred in not setting the parole eligibility date about 10 weeks earlier.

The court granted the application for leave to appeal and allowed the appeal by varying the sentence so that the parole release date is fixed at 20 June 2016. The court otherwise confirmed the sentence imposed at first instance. This decision highlights the importance of considering all relevant factors, including periods of custody, when setting both the head sentence and the parole eligibility date in criminal sentencing.

Orders

Orders of the court

1. Grant the application for leave to appeal.

2. Allow the appeal by varying the sentence so that the parole release date is fixed at 20 June 2016.

3. Otherwise confirm the sentence imposed at first instance.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

He also produced new documents supporting his positive efforts to rehabilitate whilst in custody and the rehabilitative assistance available to him upon his release, including from the Salvation Army and the Uniting Care Community.Conclusion This Court’s focus must be on the material before the sentencing judge. The applicant has not demonstrated that a miscarriage of justice would result if this Court did not grant his application to adduce further evidence. For those reasons this Court cannot receive that material. As counsel for the respondent pointed out, a considerable difficulty for the applicant is that the sentence imposed was what was requested by his experienced barrister at sentence: see R v Flew.[5] Further, the cases upon which the applicant relies do not demonstrate that the sentence imposed was in itself manifestly excessive. A head sentence of three years imprisonment with parole eligibility set after 12 months would have been an entirely appropriate sentence for this concerning offence of armed robbery in company, even considering the applicant’s comparative youth at the time, his plea of guilty and his lack of significant prior criminal history for offences of violence. The maximum penalty for armed robbery in company is life imprisonment and the offence must have been greatly disturbing for the unfortunate victim. The applicant received the full benefit of 53 days of pre-sentence custody from 3 May until 24 June 2015 when sentenced in June 2015 for receiving. He is not entitled to have that time in custody taken into account again in the sentence for the armed robbery offence. There was, however also 33 days from 29 January until 3 March 2015 relating to the drug offences and 35 days from 20 July until 28 August 2015 when parole was cancelled. These periods could not be declared as time served under the sentence but deserved to be considered in framing a just sentence. As defence counsel requested, the judge gave more than full credit to these periods of custody and the totality principle by moderating the three year head sentence to two years and eight months. This ensured the applicant would have the benefit of a fixed parole release date, despite his earlier breach of parole. Defence counsel, however, made no specific submissions as to the parole eligibility date, merely stating that it should reflect the mitigating circumstances.[5][2008] QCA 290, [28]. The question in this application is whether the judge erred in not also giving credit for this time in custody, not only in setting the head sentence, but also in setting the parole eligibility date. Given the mitigating features of comparative youth, lack of relevant prior convictions for violence and plea of guilty, the applicant could expect, as, I think, the primary judge appreciated, to have been released on parole after serving about one third of his sentence for the armed robbery offence. Having reduced the three years head sentence to two years and eight months to take into account periods of custody which could not be declared as time served, it was logical and appropriate, to also reflect this in setting the parole eligibility date. In the circumstances pertaining in this case, the judge erred in not doing this. The parole eligibility date should have been set about 10 weeks earlier.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Stokes [2016] QCA 157
PARTIES:	R v STOKES, Joel Wade (applicant)
FILE NO/S:	CA No 226 of 2015 DC No 934 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 28 August 2015
DELIVERED ON:	14 June 2016
DELIVERED AT:	Brisbane
HEARING DATE:	8 March 2016
JUDGES:	Margaret McMurdo P and Gotterson JA and Bond J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant the application for leave to appeal. 2. Allow the appeal by varying the sentence so that the parole release date is fixed at 20 June 2016. 3. Otherwise confirm the sentence imposed at first instance.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was sentenced to two years and eight months for an offence of armed robbery in company and short concurrent terms of imprisonment for three drug offences – where the applicant had served 35 days of an unrelated six month sentence at the time of the robbery sentence – where the applicant had spent 33 days in pre-sentence custody which could not be declared as time served under the sentence – where the primary judge took these two periods of custody into consideration when framing a just head sentence but failed to take them into account when setting the parole eligibility date
COUNSEL:	The applicant appeared on his own behalf S J Farnden for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent