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R v Symss

R v Symss

Case [2020] QCA 17 14 February 2020

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Symss [2020] QCA 17

PARTIES:

R
v
SYMSS, Shane Antoni
(applicant)

FILE NO/S:

CA No 53 of 2019
DC No 2821 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 1 March 2019 (Clare SC DCJ)

DELIVERED ON:

14 February 2020

DELIVERED AT:

Brisbane

HEARING DATE:

23 September 2019

JUDGES:

Sofronoff P and Morrison and McMurdo JJA

ORDERS:

1.   Leave to appeal granted.

2.   Appeal allowed.

3.   The sentence imposed for counts 1, 2, 4 and 6 is set aside.

4.   For counts 1, 2 and 4 the applicant is sentenced to imprisonment for a term of 10 years.

5.   For count 6, the applicant is sentenced to imprisonment for a term of four years.

6.   The applicant is eligible for parole on 1 March 2023.

7.   The sentences for counts 5 and 7 are not disturbed.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – TOTALITY – OFFENCES COMMITTED IN DIFFERENT JURISDICTIONS – where the applicant was convicted of seven serious offences including rape, indecent assault, breaking and entering into the house of a woman in the night-time with intent to commit an indictable offence, and stealing – where the offences were committed in 1996 in Queensland – where the applicant received a sentence of 16 years imprisonment to be served concurrently with parole eligibility after four years – where the applicant was previously convicted for various armed robberies and house breakings in Queensland between 1993 and 1994 – where the applicant committed various offences including unlawful use of a motor vehicle and trespass while on probation – where the applicant was previously convicted for burglary and theft offences in Victoria in 1998 while serving a three years suspended imprisonment sentence from Queensland – where the applicant was previously convicted for murder in New South Wales and sentenced to 22 years imprisonment – where the applicant remains in custody and has not been paroled – where the applicant has been transferred to serve the remainder of his New South Wales sentence in Queensland – where the applicant’s sentence of 16 years imprisonment in Queensland is to be served after already serving a sentence of almost 20 years – where, in effect, the total imprisonment term to be served is 36 years with parole eligibility after 24 years –whether the principle of totality has been distorted by the mixed jurisdictional environment – whether the sentence is manifestly excessive

Criminal Code (Qld)
Penalties and Sentences Act 1992 (Qld), Part 9A

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited
R v Beck [2005] VSCA 11, cited
R v Coghlan [1998] 2 Qd R 498; [1997] QCA 270, cited
R v E, AD (2005) 93 SASR 20; [2005] SASC 332, cited
R v Henry[2002] QCA 520, cited
R v Jamieson

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 Symss

Details

AGLC: R v Symss [2020] QCA 17
Case: [2020] QCA 17
Decision Date: 14 February 2020

CaseChat Overview and Summary

The applicant, in this case, appealed against the sentence imposed by the District Court of Queensland for various serious offences. The applicant was convicted of multiple charges, including rape, indecent assault, and breaking and entering. These offences were committed in 1996, and the court sentenced the applicant to 16 years imprisonment, with parole eligibility after serving four years. The applicant's criminal history included prior convictions for armed robberies and house breakings in Queensland, as well as other offences committed in Victoria and New South Wales. The applicant's extensive criminal record, combined with the severity of the current offences, led to the lengthy sentence. The applicant argued that the principle of totality was distorted by the mixed jurisdictional environment and that the sentence was manifestly excessive.

The court was required to determine whether the principle of totality had been appropriately applied in light of the applicant's extensive criminal history across different jurisdictions. The principle of totality refers to the need to consider the overall punishment for all offences when determining the sentence for each individual offence. The court had to balance the severity of the current offences with the applicant's prior criminal conduct and the need for deterrence and rehabilitation. Additionally, the court had to consider whether the sentence imposed was manifestly excessive, taking into account the totality principle and the applicant's extensive criminal history.

The court held that the principle of totality had indeed been distorted by the mixed jurisdictional environment, as the applicant had already served a significant portion of his sentence in New South Wales. The court found that the total imprisonment term to be served was effectively 36 years, with parole eligibility after 24 years, which was considered manifestly excessive. The court set aside the sentence for counts 1, 2, 4, and 6, and imposed new sentences for those counts, totalling 14 years imprisonment with parole eligibility on 1 March 2023. The sentences for counts 5 and 7 were left undisturbed.

The court granted leave to appeal and allowed the appeal in part. The sentences for counts 1, 2, 4, and 6 were set aside, and new sentences were imposed for those counts. The sentences for counts 5 and 7 were not disturbed. The applicant is now eligible for parole on 1 March 2023.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. The sentence imposed for counts 1, 2, 4 and 6 is set aside.

4. For counts 1, 2 and 4 the applicant is sentenced to imprisonment for a term of 10 years.

5. For count 6, the applicant is sentenced to imprisonment for a term of four years.

6. The applicant is eligible for parole on 1 March 2023.

7. The sentences for counts 5 and 7 are not disturbed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Symss [2020] QCA 17

Most Recent Citation

R v WBK [2020] QCA 60

Cases Citing This Decision

R v Norgate [2023] QCA 231
Citation 1

…red R v Hilsley [2020] QDCSR 878, considered R v Mellor [2019] QCA 298, considered R v Russell [2021] QCA 35, applied R v Symss (2020) 3 QR 336; [2020] QCA 17, applied R v WBK (2020) 4 QR 110; [2020] QCA 60, applied COUNSEL: S J Hedge for the applicant B J Jackson for the respondent SOLICITORS: Legal Aid Queenslan…
R v BEB [2023] QCA 105
Citation 2 (Para 18)

…roach adopted risked failing to properly apply totality considerations as to which reference was made to the judgment of Sofronoff P in R v Symss [2020] QCA 17 at [22].…
Wilson v Barraud [2021] QDC 223
Citation 3 (Para 25)

…nimal cruelty, see Wolf, Bagaris and Kotzmann, Towards a Coherent Sentencing Jurisprudence for Animal Cruelty Offences (2021) ALJ 368. [72] R v Symss [2020] QCA 17, [22].…
R v Matauaina [2020] QCA 274
Citation 4

…19] 2 Qd R 528; [2018] QCA 258, cited R v Mill (1988) 166 CLR 59; [1988] HCA 70, considered R v Symss (2020) 3 QR 336; [2020] QCA 17, considered COUNSEL: A Edwards for the applicant C Wallis for the respondent SOLICITORS: A W Bale & Son for the applicant Director of Public Prosecutions (Queensland) for the respond…
R v WBK [2020] QCA 60
Citation 5 (Para 7)

…Crim R 96 at [21] – [31] and R v Beattie ; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 177 at [18] – [19]. [4]cf R v Symss [2020] QCA 17 at [19] – [22].…

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Cases Cited

R v Makary [2018] QCA 258
Citation 1

…, cited R v Henry [2002] QCA 520, cited R v Jamieson (1992) 60 A Crim R 68, cited R v Makary [2019] 2 Qd R 528; [2018] QCA 258, cited R v Penniment [1992] QCA 110, cited R v Rossi (1988) 142 LSJS 451, cited R v Walkuski [2010] SASC 146, cited Richards v The Queen [2006] NSWCCA 262, cited Roffey v Western Australi…
R v Walkuski [2010] SASC 146
Citation 2 (Para 2)

…WASCA 246, per McLure JA, at [24]-[25]. [13] R v Rossi (1988) 142 LSJS 451, at 453 per King CJ, cited with approval by Doyle CJ in R v Walkuski [2010] SASC 146, at [6].…
Roffey v The State of Western Australia [2007] WASCA 246
Citation 3 (Para 2)

…cation of conventional principles is crushing, the judge may reduce the sentence to avoid that consequence.[13] [12] Roffey v Western Australia [2007] WASCA 246, per McLure JA, at [24]-[25]. [13] R v Rossi (1988) 142 LSJS 451, at 453 per King CJ, cited with approval by Doyle CJ in R v Walkuski [2010] SASC 146, at […
Richards v R [2006] NSWCCA 262
Citation 4 (Para 25)

…t to the totality principle results in making sentences cumulative in whole or in part.[8] [7] R v Makary [2019] 2 Qd R 528. [8] Richards v The Queen [2006] NSWCCA 262.…
R v E, AD [2005] SASC 332
Citation 5

…v Beck [2005] VSCA 11, cited R v Coghlan [1998] 2 Qd R 498; [1997] QCA 270, cited R v E, AD (2005) 93 SASR 20; [2005] SASC 332, cited R v Henry [2002] QCA 520, cited R v Jamieson (1992) 60 A Crim R 68, cited R v Makary [2019] 2 Qd R 528; [2018] QCA 258, cited R v Penniment [1992] QCA 110, cited R v Rossi (1988) 1…
Markarian v The Queen [2005] HCA 25
Citation 6

…e Criminal Code (Qld) Penalties and Sentences Act 1992 (Qld), Part 9A Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited R v Beck [2005] VSCA 11, cited R v Coghlan [1998] 2 Qd R 498; [1997] QCA 270, cited R v E, AD (2005) 93 SASR 20; [2005] SAS…
R v Beck [2005] VSCA 11
Citation 7 (Para 27)

…ltiple sentences imposed at different times is crushing. As in so much of sentencing, each case depends on its own facts.” (citations omitted) [9][2005] VSCA 11 at [19].…
R v Henry [2002] QCA 520
Citation 8 (Para 11)

…t must be ameliorated. [15]Comparable cases of rape were R v Penniment [1992] QCA 110 (15 years); R v Coghlan [1998] 2 Qd R 498 (14 years); R v Henry [2002] QCA 520 (11 years).…
Pearce v The Queen [1998] HCA 57
Citation 9 (Para 22)

…sland, which, however, were committed first in time. [4]The principle was authoritatively stated in Mill , supra , at 63; and cf Pearce v The Queen (1998) 194 CLR 610, at [45]. [5](2005) 228 CLR 357. [6] Mill , supra , at 63, citing Thomas, Principles of Sentencing , 2 nd ed. (1979), pp. 56-57.…
R v Coghlan [1997] QCA 270
Citation 10

…The Queen (1988) 166 CLR 59; [1988] HCA 70, cited R v Beck [2005] VSCA 11, cited R v Coghlan [1998] 2 Qd R 498; [1997] QCA 270, cited R v E, AD (2005) 93 SASR 20; [2005] SASC 332, cited R v Henry [2002] QCA 520, cited R v Jamieson (1992) 60 A Crim R 68, cited R v Makary [2019] 2 Qd R 528; [2018] QCA 258, cited R…
R v Penniment [1992] QCA 110
Citation 11 (Para 11)

…of 24 until he is almost 60 is to inflict a punishment that is so harsh that it must be ameliorated. [15]Comparable cases of rape were R v Penniment [1992] QCA 110 (15 years); R v Coghlan [1998] 2 Qd R 498 (14 years); R v Henry [2002] QCA 520 (11 years).…
Mill v The Queen [1988] HCA 70
Citation 12

…ld), Part 9A Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited R v Beck [2005] VSCA 11, cited R v Coghlan [1998] 2 Qd R 498; [1997] QCA 270, cited R v E, AD (2005) 93 SASR 20; [2005] SASC 332, cited R v Henry [2002] QCA 520, cited R v Jamieson…

Legislation Cited

Penalties and Sentences Act 1992 (Qld)
2 mentions (from Para 12)

CITATION:	R v Symss [2020] QCA 17
PARTIES:	R v SYMSS, Shane Antoni (applicant)
FILE NO/S:	CA No 53 of 2019 DC No 2821 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 1 March 2019 (Clare SC DCJ)
DELIVERED ON:	14 February 2020
DELIVERED AT:	Brisbane
HEARING DATE:	23 September 2019
JUDGES:	Sofronoff P and Morrison and McMurdo JJA
ORDERS:	1. Leave to appeal granted. 2. Appeal allowed. 3. The sentence imposed for counts 1, 2, 4 and 6 is set aside. 4. For counts 1, 2 and 4 the applicant is sentenced to imprisonment for a term of 10 years. 5. For count 6, the applicant is sentenced to imprisonment for a term of four years. 6. The applicant is eligible for parole on 1 March 2023. 7. The sentences for counts 5 and 7 are not disturbed.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – TOTALITY – OFFENCES COMMITTED IN DIFFERENT JURISDICTIONS – where the applicant was convicted of seven serious offences including rape, indecent assault, breaking and entering into the house of a woman in the night-time with intent to commit an indictable offence, and stealing – where the offences were committed in 1996 in Queensland – where the applicant received a sentence of 16 years imprisonment to be served concurrently with parole eligibility after four years – where the applicant was previously convicted for various armed robberies and house breakings in Queensland between 1993 and 1994 – where the applicant committed various offences including unlawful use of a motor vehicle and trespass while on probation – where the applicant was previously convicted for burglary and theft offences in Victoria in 1998 while serving a three years suspended imprisonment sentence from Queensland – where the applicant was previously convicted for murder in New South Wales and sentenced to 22 years imprisonment – where the applicant remains in custody and has not been paroled – where the applicant has been transferred to serve the remainder of his New South Wales sentence in Queensland – where the applicant’s sentence of 16 years imprisonment in Queensland is to be served after already serving a sentence of almost 20 years – where, in effect, the total imprisonment term to be served is 36 years with parole eligibility after 24 years –whether the principle of totality has been distorted by the mixed jurisdictional environment – whether the sentence is manifestly excessive Criminal Code (Qld) Penalties and Sentences Act 1992 (Qld), Part 9A Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited R v Beck [2005] VSCA 11, cited R v Coghlan [1998] 2 Qd R 498; [1997] QCA 270, cited R v E, AD (2005) 93 SASR 20; [2005] SASC 332, cited R v Henry[2002] QCA 520, cited R v Jamieson