SUPREME COURT OF QUEENSLAND
CITATION:
R v TBD [2024] QCA 182
PARTIES:
R
v
TBD
(applicant)FILE NO/S:
CA No 72 of 2024
DC No 62 of 2023
DC No 767 of 2024
DC No 682 of 2024DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Brisbane – Date of Sentence: 12 April 2024 (Clare SC DCJ)
DELIVERED ON:
1 October 2024
DELIVERED AT:
Brisbane
HEARING DATE:
22 August 2024
JUDGES:
Dalton and Brown JJA and Kelly J
ORDERS:
1. Leave to appeal granted.
2. The appeal is allowed.
3. The applicant is re-sentenced as follows:
a. On indictment 62 of 2023:
i. In respect of counts 1 and 5, three years imprisonment.
ii. In respect of count 3, two years imprisonment.
b. On indictment 767 of 2024:
i. in respect of counts 1 and 2, 12 months’ imprisonment.
c. The sentences imposed in paragraphs (a) and (b), are to be served concurrently with each other and with the sentences imposed on 6 September 2023;
d. The period of pre-sentence custody between 6 September 2023 and 30 September 2024, being a period of 391 days, be taken as time served under the sentences of imprisonment referred to in paragraphs (a) and (b).
e. On indictment 767 of 2024, in respect of counts 3 to 5, 15 months’ imprisonment.
f. The sentence imposed in paragraph (e) is to be served cumulatively upon the sentences imposed in paragraphs (a) and (b) and is to commence on the expiry of the sentences imposed in paragraphs (a) and (b), being 6 September 2026.
g. In respect of the summary offence, convicted and not further punished.
4. The applicant’s parole eligibility date is fixed as at the date of judgment of this Court, being 1 October 2024.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to an array of domestic violence offences – where the applicant was sentenced to an effective sentence of four years and three months for the domestic violence offences – where the applicant was already in custody serving periods of imprisonment in relation to drug and weapons related offending at the time of the sentence – where the sentence was structured so that, by reference to the applicant’s existing sentences, his total cumulative term of imprisonment was nine years and nine months with parole eligibility after he had served approximately 3.8 years – whether the sentencing judge took the guilty pleas into account in the sentence imposed in accordance with s 13 of the Penalties and Sentences Act 1992 (Qld) – whether the sentencing judge properly applied the principle of totality to the sentence – whether the sentence was manifestly excessive
Penalties and Sentences Act 1992 (Qld), s 13, s 155
Atholwood v The Queen (1999) 109 A Crim R 465; [1999] WASCA 256, cited
Cameron v The Queen (2002) 209 CLR 339; [2002] HCA…
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- AGLC
- R v TBD [2024] QCA 182
- Case
- [2024] QCA 182
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the sentencing judge had adequately taken into account the guilty pleas in accordance with section 13 of the Penalties and Sentences Act 1992 (Qld) and whether the sentence was manifestly excessive. The court needed to assess if the sentence imposed was disproportionate to the offending and whether the principle of totality had been correctly applied. The principle of totality ensures that the cumulative effect of multiple sentences is considered to avoid undue punishment.
The court found that the sentencing judge had not sufficiently taken into account the principle of totality and that the sentence was indeed manifestly excessive. The court noted that the public safety and denunciation of the crimes were the primary focus of the sentence, but the court was required to balance these considerations with the principle of proportionality. The cumulative effect of the sentences, when combined with the appellant's existing sentences, resulted in a term of imprisonment that was disproportionate to the domestic violence offences. The court also highlighted that the sentencing judge had not adequately considered the appellant's existing sentences in the overall sentencing structure.
As a result, the appeal was allowed, and the appellant was re-sentenced. The new sentence structure ensured that the cumulative term of imprisonment was more proportionate to the domestic violence offences, and the principle of totality was properly applied. The appellant's parole eligibility date was also adjusted to the date of the judgment.
Orders
Orders of the court
1. Leave to appeal granted.
2. The appeal is allowed.
3. The applicant is re-sentenced as follows:
a. On indictment 62 of 2023:
i. In respect of counts 1 and 5, three years imprisonment.
ii. In respect of count 3, two years imprisonment.
b. On indictment 767 of 2024:
i. in respect of counts 1 and 2, 12 months’ imprisonment.
c. The sentences imposed in paragraphs (a) and (b), are to be served concurrently with each other and with the sentences imposed on 6 September 2023;
d. The period of pre-sentence custody between 6 September 2023 and 30 September 2024, being a period of 391 days, be taken as time served under the sentences of imprisonment referred to in paragraphs (a) and (b).
e. On indictment 767 of 2024, in respect of counts 3 to 5, 15 months’ imprisonment.
f. The sentence imposed in paragraph (e) is to be served cumulatively upon the sentences imposed in paragraphs (a) and (b) and is to commence on the expiry of the sentences imposed in paragraphs (a) and (b), being 6 September 2026.
g. In respect of the summary offence, convicted and not further punished.
4. The applicant’s parole eligibility date is fixed as at the date of judgment of this Court, being 1 October 2024.
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
At the conclusion of the sentencing hearing, the judge added this observation:[19]“I will say this about the purpose of today’s sentence. The public safety has been the focus of it. These are crimes that must be denounced in the clearest way, and the sentence needs to be one that deters not only like-minded people, but is a specific deterrent to [the applicant].”[19]ARB, p 60 at lines 28-31.Consideration of the grounds of appeal The following situation existed at the time of the sentencing hearing. Since 28 February 2021, the applicant had been in custody serving terms of imprisonment related to the 2016 and 2020 offending.[20] He was serving an effective sentence of five and a half years imprisonment which reflected the activation of the whole of the suspended sentence in respect of his convictions for the 2016 offending and the cumulative sentence of two years imposed in respect of the conviction for his 2020 offending. He had spent 1,134 days in custody, an additional 218 days to the 921 days declared as time served for the purpose of his sentence imposed on 6 September 2023. He had been eligible for parole since 6 September 2023. The full time expiry date of his existing sentences was 27 August 2026.[20]During an earlier six months period between 25 January 2017 and 25 July 2017, he had served six months of the terms of imprisonment imposed in respect of his convictions for the 2016 offending. The sentence imposed in respect of the subject offending was structured as follows:(a) In respect of the two choking counts, three years imprisonment.(b) In respect of the count of assault occasioning bodily harm, two years imprisonment.(c) In respect of counts one and two of the second indictment, 12 months’ imprisonment.(d) Each of the terms of imprisonment referred to in (a) to (c), were to be served concurrently with each other, but to commence at the expiration of the sentence imposed in respect of the 2020 offending, being 27 August 2026.(e) In respect of counts three to five of the second indictment (“the offending in custody”), the applicant was sentenced to 15 months imprisonment, to be served concurrently with each other but cumulatively upon, and to commence upon the expiry of, the three years sentence for the choking.(f) In respect of the summary offence, the applicant was convicted and not further punished. (g) None of the period spent in pre-sentence custody was declared, but that time was taken into account in determining a parole eligibility date, which was fixed as 6 December 2024. Before considering the separate grounds of appeal, it is convenient to consider the sentencing yardsticks for the subject offending, viewed in isolation from the 2016 and 2020 offending. The subject offending had been committed by a mature aged man, with a significant criminal history which included terms of imprisonment for drug offending, but no violent offending. On this appeal, the applicant did not seek to disturb the findings which her Honour made about the nature of the subject offending. Those findings were entirely appropriate. The judge, who was highly experienced in sentencing offenders for domestic violence offending,[21] described the subject offending as “bad examples” of choking and breaches of a protection order.[21]ARB, p 44 at lines 40-45.