R v Summers - [2015] QCA 278

SUPREME COURT OF QUEENSLAND

CITATION:

R v Summers [2015] QCA 278

PARTIES:

R
v
SUMMERS, Kyle Joshua
(applicant)

FILE NO/S:

CA No 40 of 2015
DC No 465 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport – Unreported, 9 March 2015

DELIVERED ON:

18 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2015

JUDGES:

Gotterson and Morrison and Philippides JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application for leave to appeal against sentence is granted.

2.   The appeal is allowed.

3.   The order made on 9 March 2015, setting the parole release date at 6 July 2015, is set aside, and in lieu thereof the parole release date is set at 31 March 2015.

4.   The sentences otherwise imposed on 9 March 2015 are confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to four counts, namely attempted robbery (assault with intent to steal, using actual violence); possession of a dangerous drug (cocaine); possession of a dangerous drug (cannabis); receiving tainted property (a mobile phone) – where the applicant was sentenced to 12 months imprisonment with a parole release date after four months for the count of attempted robbery and three months for the remaining counts, to be served concurrently – where the applicant was intoxicated and talking on his mobile phone – where the applicant fell into a gutter as he passed the complainant – where the applicant spoke aggressively towards the complainant – where the applicant asked the complainant if he wanted “a cut” – where the applicant attempted to intimidate the complainant into giving the applicant his phone – where the applicant pushed the complainant – where the applicant asked the complainant where he was from – where upon discovering where the complainant was from, the applicant ceased being aggressive on the premise the complainant was “from [his] hood” – where the complainant left the scene – where police were conducting foot patrols and the complainant told them what happened – where the police approached the applicant and discovered in the applicant’s backpack $1,500 in cash, a large clip seal bag with two smaller clip seal bags inside, containing 0.965 grams and 0.903 grams respectively of a white substance in which cocaine was detected, and the larger clip seal bag containing approximately 1 gram of cannabis – where the applicant was patted down by police and a mobile phone was discovered in the applicant’s pants – where the applicant was arrested – whether the sentence was manifestly excessive

R v Francis[1996] QCA 217, cited
R v Kolodziej[2008] QCA 184, cited
R v Norton[2007] QCA 320, cited
R v Taylor & Napatali; Ex parte Attorney-General (Qld) (1999) 106 A Crim R 578; [1999] QCA 323, cited

COUNSEL:

A Vasta QC for…

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 Summers

Details

AGLC: R v Summers [2015] QCA 278
Case: [2015] QCA 278
Decision Date: 18 December 2015

CaseChat Overview and Summary

The applicant, Mr Summers, appealed against his sentence for four criminal counts: attempted robbery (assault with intent to steal, using actual violence), possession of a dangerous drug (cocaine), possession of a dangerous drug (cannabis), and receiving tainted property (a mobile phone). The trial judge had sentenced Mr Summers to 12 months imprisonment for the attempted robbery count, and three months for each of the remaining counts, to be served concurrently, with a parole release date set for 6 July 2015.

The appeal focused on whether the sentence was manifestly excessive. The court considered the circumstances of the offence, Mr Summers’ intoxication, and his prior criminal history. The court also noted that Mr Summers had already served 26 days of his sentence. The appeal court found that the trial judge had given insufficient weight to mitigating factors and that the sentence was manifestly excessive.

Accordingly, the appeal court granted leave to appeal and allowed the appeal, setting the parole release date at 31 March 2015. The court confirmed the sentences otherwise imposed on 9 March 2015. The final orders were that the application for leave to appeal against sentence was granted, the appeal was allowed, the order setting the parole release date at 6 July 2015 was set aside and replaced with a parole release date of 31 March 2015, and the sentences otherwise imposed were confirmed.

Orders

Orders of the court

1. The application for leave to appeal against sentence is granted.

2. The appeal is allowed.

3. The order made on 9 March 2015, setting the parole release date at 6 July 2015, is set aside, and in lieu thereof the parole release date is set at 31 March 2015.

4. The sentences otherwise imposed on 9 March 2015 are confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As it happens Mr Summers has already served 26 days of imprisonment, being granted appeal bail on 31 March 2015. For the reasons given above I would vary the sentence to the extent of setting the parole release date at 31 March 2015.Conclusion and orders I would propose the following orders:1.The application for leave to appeal against sentence is granted.2.The appeal is allowed.3.The order made on 9 March 2015, setting the parole release date at 6 July 2015, is set aside, and in lieu thereof the parole release date is set at 31 March 2015.4.The sentences otherwise imposed on 9 March 2015 are confirmed. PHILIPPIDES JA: I agree with the orders proposed by Morrison JA for the reasons given by his Honour.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Summers [2015] QCA 278
PARTIES:	R v SUMMERS, Kyle Joshua (applicant)
FILE NO/S:	CA No 40 of 2015 DC No 465 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport – Unreported, 9 March 2015
DELIVERED ON:	18 December 2015
DELIVERED AT:	Brisbane
HEARING DATE:	29 July 2015
JUDGES:	Gotterson and Morrison and Philippides JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal against sentence is granted. 2. The appeal is allowed. 3. The order made on 9 March 2015, setting the parole release date at 6 July 2015, is set aside, and in lieu thereof the parole release date is set at 31 March 2015. 4. The sentences otherwise imposed on 9 March 2015 are confirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to four counts, namely attempted robbery (assault with intent to steal, using actual violence); possession of a dangerous drug (cocaine); possession of a dangerous drug (cannabis); receiving tainted property (a mobile phone) – where the applicant was sentenced to 12 months imprisonment with a parole release date after four months for the count of attempted robbery and three months for the remaining counts, to be served concurrently – where the applicant was intoxicated and talking on his mobile phone – where the applicant fell into a gutter as he passed the complainant – where the applicant spoke aggressively towards the complainant – where the applicant asked the complainant if he wanted “a cut” – where the applicant attempted to intimidate the complainant into giving the applicant his phone – where the applicant pushed the complainant – where the applicant asked the complainant where he was from – where upon discovering where the complainant was from, the applicant ceased being aggressive on the premise the complainant was “from [his] hood” – where the complainant left the scene – where police were conducting foot patrols and the complainant told them what happened – where the police approached the applicant and discovered in the applicant’s backpack $1,500 in cash, a large clip seal bag with two smaller clip seal bags inside, containing 0.965 grams and 0.903 grams respectively of a white substance in which cocaine was detected, and the larger clip seal bag containing approximately 1 gram of cannabis – where the applicant was patted down by police and a mobile phone was discovered in the applicant’s pants – where the applicant was arrested – whether the sentence was manifestly excessive R v Francis[1996] QCA 217, cited R v Kolodziej[2008] QCA 184, cited R v Norton[2007] QCA 320, cited R v Taylor & Napatali; Ex parte Attorney-General (Qld) (1999) 106 A Crim R 578; [1999] QCA 323, cited
COUNSEL:	A Vasta QC for…