R v Suey - [2005] QCA 27

SUPREME COURT OF QUEENSLAND

CITATION:

R v Suey [2005] QCA 27

PARTIES:

R
v
SUEY, Daniel Richard
(applicant/appellant)

FILE NO/S:

CA No 379 of 2004
DC No 441 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

14 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

14 February 2005

JUDGES:

McMurdo P, Mackenzie J, Chesterman J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for leave to appeal against sentence granted
2. Appeal allowed
3. Vary sentence imposed by substituting 15 months in lieu of 20 months

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant convicted of two counts of armed robbery – where applicant was addicted to heroin at the time of the offences – where applicant voluntarily underwent structured rehabilitation program – where exceptional success at rehabilitation – whether sentence manifestly excessive

COUNSEL:

The applicant/appellant appeared on his own behalf
R G Martin SC for the respondent

SOLICITORS:

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

MACKENZIE J: The applicant pleaded guilty to two counts of armed robbery aggravated in respect of the first count by being armed with a box cutter and, in the case of the second, by pretending to be armed with a firearm. He was sentenced to five years' imprisonment suspended for five years after 20 months with 221 days of presentence custody to be taken into account as time already served. He claims that the sentence is manifestly excessive.

The two offences were committed within hours of each other and, in circumstances where he committed the second robbery almost immediately after the police had left his home after investigating him as a suspect for the first robbery.

Count 1 occurred at 11.35 p.m. on the 17th of January 2003 at a Shell Service Station near Dreamworld. The employee who was on duty alone unlocked the door and let the applicant, who was wearing a black jumper with the hood pulled up over his head and sunglasses, into the service station. The applicant demanded money which he said was needed to pay household bills and revealed a Stanley knife lodged in his waistband. The attendant handed over $365 and the applicant left. The police found him in a nearby street. He told them that he was on his way to a Mobil Service Station to get food. They found $100 in his pants. He agreed to go with them to his home at Mermaid Beach where they made further inquiries. The police finished their inquiries without arresting him at about 5.26 a.m. However, fingerprints left by the applicant at the service station later confirmed that he was the offender.

A matter of minutes after the police left he went…

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 Suey

Details

AGLC: R v Suey [2005] QCA 27
Case: [2005] QCA 27
Decision Date: 14 February 2005

CaseChat Overview and Summary

In the matter of R v Suey, the High Court of Australia considered an appeal by the applicant against his sentence for two counts of armed robbery. The applicant, who was addicted to heroin at the time of the offences, voluntarily underwent a structured rehabilitation program and achieved exceptional success. The Court was required to determine whether the sentence imposed by the trial judge was manifestly excessive in the circumstances. The central issue was whether the trial judge had failed to properly consider the applicant's exceptional rehabilitation success when imposing sentence, which led to the sentence being manifestly excessive.

The High Court held that the trial judge had not properly considered the applicant's exceptional rehabilitation success when imposing sentence. The Court found that the trial judge had not taken into account the fact that the applicant had voluntarily undergone a structured rehabilitation program and achieved exceptional success, which was a significant mitigating factor. The Court held that the sentence imposed was manifestly excessive in the circumstances and that the applicant was entitled to a reduction in sentence. The Court further held that the appropriate reduction in sentence was 5 months, reducing the sentence imposed from 20 months to 15 months.

Accordingly, the High Court allowed the applicant's appeal against sentence, granted leave to appeal, and varied the sentence imposed by substituting 15 months in lieu of 20 months. The Court's decision highlights the importance of considering exceptional rehabilitation success when imposing sentence, particularly in cases involving drug addiction. The Court's decision also underscores the need for trial judges to properly consider all mitigating factors when imposing sentence.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed

3. Vary sentence imposed by substituting 15 months in lieu of 20 months

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 Suey [2005] QCA 27
PARTIES:	R v SUEY, Daniel Richard (applicant/appellant)
FILE NO/S:	CA No 379 of 2004 DC No 441 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	14 February 2005
DELIVERED AT:	Brisbane
HEARING DATE:	14 February 2005
JUDGES:	McMurdo P, Mackenzie J, Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted 2. Appeal allowed 3. Vary sentence imposed by substituting 15 months in lieu of 20 months
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant convicted of two counts of armed robbery – where applicant was addicted to heroin at the time of the offences – where applicant voluntarily underwent structured rehabilitation program – where exceptional success at rehabilitation – whether sentence manifestly excessive
COUNSEL:	The applicant/appellant appeared on his own behalf R G Martin SC for the respondent
SOLICITORS:	The applicant/appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the applicant