R v Surace - [2020] QCA 134

SUPREME COURT OF QUEENSLAND

CITATION:

R v Surace [2020] QCA 134

PARTIES:

R
v
SURACE, Giuseppe
(applicant)

FILE NO/S:

CA No 255 of 2019
SC No 1672 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 9 September 2019 (Boddice J)

DELIVERED ON:

19 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

6 May 2020

JUDGES:

Mullins JA, Lyons SJA and Ryan J

ORDERS:

1.   The application for leave to adduce evidence is refused.

2.   The application for leave to appeal against sentence is allowed.

3.   Appeal against sentence is allowed on Count 3 and Count 5.

4.   The sentence on Count 3 is varied by reducing the term of imprisonment to six years.

5.   The sentence on Count 5 is varied by reducing the term of imprisonment to six years.

6.   The date the appellant is eligible for parole is fixed at 8 September 2021.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant and his brother were both charged on a six count indictment in respect of two complainants – where on day two of the joint trial, the applicant’s brother pleaded guilty to attempted murder and grievous bodily harm with intent (Counts 2 and 5 on the indictment) – where the jury was discharged and on day one of his new trial the applicant pleaded guilty to assault occasioning bodily harm while armed and in company as against one of the complainants, and grievous bodily harm with intent in respect of both complainants (Counts 1, 3 and 5) – where the applicant was subsequently sentenced to concurrent sentences of eight years in relation to Counts 3 and 5 and four years in relation to Count 1 – where no pre-sentence custody had been served and his parole eligibility was fixed at 8 September 2022, three years from the date of sentence – where the applicant now seeks leave to appeal the sentences imposed on the basis they are manifestly excessive – whether there was an element of pre-meditation in the applicant’s actions – whether the learned sentencing judge did not take into account the true nature of the applicant’s criminal responsibility and accordingly the sentence imposed was manifestly excessive – whether the sentencing judge proceeded to impose the sentence on the applicant on an incorrect basis – whether the sentencing discretion miscarried

R v Granato[2006] QCA 25, considered
R v Laing[2008] QCA 317, considered
R v Marks; Ex parte Attorney-General of Queensland[2002] QCA 34, considered
R v Singh[2006] QCA 71, considered
R v W[2004] QCA 124, considered
R v Warne[2015] QCA 9, considered

COUNSEL:

The applicant appeared on his own behalf
J D Finch for the respondent

SOLICITORS:

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

MULLINS JA: I agree with Lyons…

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 Surace

Details

AGLC: R v Surace [2020] QCA 134
Case: [2020] QCA 134
Decision Date: 19 June 2020

CaseChat Overview and Summary

In the case of R v Surace, the applicant, who had previously pleaded guilty to multiple charges including assault occasioning bodily harm while armed and in company, and grievous bodily harm with intent, sought leave to appeal against the sentences imposed, arguing that they were manifestly excessive. The case was heard by the court, which had to determine whether the sentences were appropriate given the circumstances and whether the sentencing judge had taken into account all relevant factors. The applicant argued that the sentences were excessive because they did not reflect the lack of premeditation in his actions and that he should have been given more credit for accepting responsibility.

The court considered the arguments put forward by the applicant and the submissions made by the prosecution. It reviewed the agreed statement of facts which detailed the events leading up to the offences, including the lack of prior acquaintance between the applicant and the victims and the spontaneous nature of the criminal activity. The court also examined the sentencing judge's reasoning and the principles of sentencing that were applied. The central issue was whether the sentences were manifestly excessive or inadequate, considering the nature of the applicant's criminal responsibility and his cooperation with the prosecution.

The court found that the sentences imposed on the applicant were indeed manifestly excessive. It accepted that the applicant's actions were not premeditated and that he had shown cooperation by pleading guilty and accepting responsibility. The court also noted that the sentencing judge had not sufficiently taken into account the lack of premeditation and the applicant's cooperation. As a result, the court allowed the appeal against sentence, varied the sentences on the relevant counts, and reduced the term of imprisonment for each count to six years. The date for parole eligibility was also adjusted to 8 September 2021.

The final orders of the court included refusal of the application for leave to adduce additional evidence, allowance of the application for leave to appeal against sentence, allowance of the appeal against sentence on the specified counts, variation of the sentences on those counts to six years imprisonment each, and adjustment of the parole eligibility date.

Orders

Orders of the court

1. The application for leave to adduce evidence is refused.

2. The application for leave to appeal against sentence is allowed.

3. Appeal against sentence is allowed on Count 3 and Count 5.

4. The sentence on Count 3 is varied by reducing the term of imprisonment to six years.

5. The sentence on Count 5 is varied by reducing the term of imprisonment to six years.

6. The date the appellant is eligible for parole is fixed at 8 September 2021.

Background

Background to the litigation

In his outline of submissions the applicant argues that he should have been sentenced on the basis of the agreed statement of facts which made it clear that there was no element of premeditation in his actions and that the unlawful common purpose was formed in his mind only at the point he approached the scene. The applicant also argued he should have received greater credit for his cooperation and willingness to accept responsibility for his actions.The Agreed Statement of Facts At the hearing, an agreed statement of facts was tendered.[2] All of the offences occurred on 26 December 2016. The applicant was 39 at the time of the offences and Francesco was 41. The complainants were father and son, Raymond Wensley and Isaac Wensley, who were aged 58 and 24 respectively. The complainants and the applicant were not known to each other.[2]Exhibit 3 ARB pp 45-49. Raymond Wensley owned an 11 acre property at Pimpama from which he operated a caravan storage business and he lived on the property with his wife. At 6.30 on the morning of 26 December 2016, Mrs Wensley heard a screen door in the kitchen open, and Francesco Surace was seen entering. She considered his behaviour was odd and he was making statements claiming ownership of the property. Raymond Wensley came to investigate and confronted Francesco who continued to make comments about owning the property. Francesco ultimately left the house but walked around the property and Raymond Wensley followed him in a golf buggy. He attempted to remove Francesco from the property and got out of the buggy to approach him however Francesco became aggressive and eventually kicked Raymond Wensley in the leg. A wrestle evolved during which Raymond grabbed a pick handle from his golf buggy and used it to strike Francesco. Francesco then left the property, with Raymond Wensley again following. Police arrived and Francesco was arrested. Francesco’s car, a Barina, was left parked on the side of Old Wharf Road. Francesco was ultimately released on bail with a condition that he not attend Old Wharf Road and have no contact with Raymond Wensley. During the day, Raymond Wensley took his tractor to where Francesco’s car had been left and drove his tractor into the Barina a number of times. He then used straps attached to the tractor to flip the Barina onto its roof. Francesco returned later in the day with the applicant to retrieve the car. Raymond Wensley and his son Isaac became aware of their presence and attended. They were unhappy that Francesco had returned and at some point Raymond grabbed a pick handle from his utility. Francesco, who had alighted the applicant’s station wagon, then ran back and jumped into the passenger side of it and the applicant drove in the direction of both Raymond and Isaac Wensley. Raymond used the pick handle to strike the driver’s side window of the car as it drove by, smashing it. The applicant’s mother was informed that the Barina was on its roof and she asked a neighbour to attend in a truck to turn the Barina onto its wheels so that it could be towed away. The neighbour’s attendance at the Wensley’s property was brought to the attention of Raymond who travelled to the Barina in his utility with his caretaker. Isaac Wensley also attended in a golf buggy with another man. The applicant’s sister, Angelina Surace, was present as the men arrived and got out of their vehicles. Raymond Wensley was speaking with a neighbour when he saw Francesco walking from the back of his sister’s car. He was described as walking back and forth. He was shirtless, and had a black backpack behind him. Francesco was described as hugging the tree line as he headed towards Raymond and Isaac Wensley. Raymond Wensley grabbed the pick handle from his car and Isaac Wensley took a cricket bat from the golf buggy. At that point Francesco held out his hands saying he did not have anything in them. He kept saying, “don’t come anywhere near me”. Francesco then stopped and pulled a sawn-off shotgun from the bag behind his back and dropped the black bag. He then pointed the gun at Raymond.

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 Surace [2020] QCA 134
PARTIES:	R v SURACE, Giuseppe (applicant)
FILE NO/S:	CA No 255 of 2019 SC No 1672 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 9 September 2019 (Boddice J)
DELIVERED ON:	19 June 2020
DELIVERED AT:	Brisbane
HEARING DATE:	6 May 2020
JUDGES:	Mullins JA, Lyons SJA and Ryan J
ORDERS:	1. The application for leave to adduce evidence is refused. 2. The application for leave to appeal against sentence is allowed. 3. Appeal against sentence is allowed on Count 3 and Count 5. 4. The sentence on Count 3 is varied by reducing the term of imprisonment to six years. 5. The sentence on Count 5 is varied by reducing the term of imprisonment to six years. 6. The date the appellant is eligible for parole is fixed at 8 September 2021.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant and his brother were both charged on a six count indictment in respect of two complainants – where on day two of the joint trial, the applicant’s brother pleaded guilty to attempted murder and grievous bodily harm with intent (Counts 2 and 5 on the indictment) – where the jury was discharged and on day one of his new trial the applicant pleaded guilty to assault occasioning bodily harm while armed and in company as against one of the complainants, and grievous bodily harm with intent in respect of both complainants (Counts 1, 3 and 5) – where the applicant was subsequently sentenced to concurrent sentences of eight years in relation to Counts 3 and 5 and four years in relation to Count 1 – where no pre-sentence custody had been served and his parole eligibility was fixed at 8 September 2022, three years from the date of sentence – where the applicant now seeks leave to appeal the sentences imposed on the basis they are manifestly excessive – whether there was an element of pre-meditation in the applicant’s actions – whether the learned sentencing judge did not take into account the true nature of the applicant’s criminal responsibility and accordingly the sentence imposed was manifestly excessive – whether the sentencing judge proceeded to impose the sentence on the applicant on an incorrect basis – whether the sentencing discretion miscarried R v Granato[2006] QCA 25, considered R v Laing[2008] QCA 317, considered R v Marks; Ex parte Attorney-General of Queensland[2002] QCA 34, considered R v Singh[2006] QCA 71, considered R v W[2004] QCA 124, considered R v Warne[2015] QCA 9, considered
COUNSEL:	The applicant appeared on his own behalf J D Finch for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent