SUPREME COURT OF QUEENSLAND
CITATION:
R v ZC [2024] QCA 89
PARTIES:
R
v
ZC
(applicant)FILE NO/S:
CA No 243 of 2023
DC No 1903 of 2023DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Brisbane – Date of Sentence: 24 November 2023 (Wooldridge KC DCJ)
DELIVERED ON:
21 May 2024
DELIVERED AT:
Brisbane
HEARING DATE:
10 May 2024
JUDGES:
Boddice JA and Crow and Crowley JJ
ORDERS: 1. Leave to appeal granted.
2. Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of the offence of unlawful stalking with violence and sentenced to 15 months’ imprisonment – where the applicant was convicted of the offence of enter dwelling with intent to commit an indictable offence and was sentenced to two years’ imprisonment – where the applicant was convicted of the offence of sexual assault and was sentenced to two years’ probation – where convictions were recorded – where the offences were domestic violence offences – where the offences were serious – where the pleas of guilty were timely – where the offending occurred over a period of four months and escalated in seriousness – where the applicant was 19 years at the time of the offending – where the applicant was a first time offender – where the applicant showed a lack of insight as to his wrongful behaviour – where the offender lacked a prior criminal history – where the applicant has good prospects of rehabilitation – where the applicant is a non-citizen – where the applicant has not sought psychological treatment or other assistance – where the applicant consented to the making of a domestic violence order – where the sentencing judge considered in the circumstances of the case the principles that that a sentence of imprisonment should only be imposed as a last resort and a sentence which allows an offender to stay in the community is preferable were displaced – where the sentencing judge considered some component of supervision was required – whether the sentences imposed were outside the range of reasonable sentencing discretion
Penalties and Sentences Act 1992 (Qld), s 9(10A)
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Lahey v Sanderson [1959] Tas SR 17; [1959] TASStRp 10, cited
R v Honeysett; ex parte A-G (Qld)[2010] QCA 212, cited
R v Hopper; Ex parte Attorney-General(Qld) [2015] 2 Qd R 56; [2014] QCA 108, cited
R v Kelley[2018] QCA 18, cited
R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited
R v UE[2016] QCA 58, cited
Sarhene v R [2022] NSWCCA 79, citedCOUNSEL:
D Nguyen for the applicant
S J Gallagher for the respondentSOLICITORS:
Ascent Lawyers for the applicant
Director of Public Prosecutions (Queensland)…
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- AGLC
- R v ZC [2024] QCA 89
- Case
- [2024] QCA 89
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the sentences imposed were outside the range of reasonable sentencing discretion and whether the sentences were manifestly excessive or inadequate. The court noted that a challenge to a sentence on the grounds of manifest excess involves a constrained challenge to the discretionary judgment exercised by the sentencing judge. The court must consider whether the sentence imposed was unreasonable or plainly unjust, such that it may be inferred there has been a failure to properly exercise the discretion which the law reposes in the court of first instance. The court also noted that intervention is warranted only where the difference between the sentence imposed and sentences imposed in comparable cases is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle.
The court considered the submissions of the applicant’s counsel and the concessions made by the parties before the sentencing judge. The court found that the sentences imposed were within the range of reasonable sentencing discretion and that there was no misapplication of principle. The court accepted that the sentences were appropriate in the circumstances of the case, having regard to the applicant’s youth, lack of prior criminal history, and other mitigating circumstances. The court also noted that the applicant had consented to the making of a domestic violence order and that the sentencing judge had considered the principles that a sentence of imprisonment should only be imposed as a last resort and that a sentence which allows an offender to stay in the community is preferable were displaced.
The court granted leave to appeal but dismissed the appeal. The court found that the sentences imposed were not manifestly excessive or inadequate and that there was no misapplication of principle. The court accepted that the sentences were appropriate in the circumstances of the case, having regard to the applicant’s youth, lack of prior criminal history, and other mitigating circumstances. The court noted that the applicant had consented to the making of a domestic violence order and that the sentencing judge had considered the principles that a sentence of imprisonment should only be imposed as a last resort and that a sentence which allows an offender to stay in the community is preferable were displaced. The court found that the sentences imposed were within the range of reasonable sentencing discretion.
Orders
Orders of the court
1. Leave to appeal granted.
2. Appeal dismissed.
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
The sentencing judge ultimately concluded:“…it is my view that the appropriate sentence here is one of imprisonment, but I accept that, on balance, having regard to your youth, lack of prior criminal history and other mitigating circumstances, that the sentences may be structured so as to wholly suspend the terms of imprisonment and impose a concurrent period of probation.”Consideration A contention that a sentence is manifestly excessive involves a challenge to the discretionary judgment exercised by the sentencing judge. Such a challenge is constrained by the principles espoused in House v The King.[2] Absent specific error, what must be established by an appellant is that interference by the appellate court is warranted because on the facts of the case the result reached by the sentencing judge is unreasonable or plainly unjust, such that it may be inferred there has been a failure to properly exercise the discretion which the law reposes in the court of first instance.[2](1936) 55 CLR 499, 505. To succeed on a complaint of manifest excess, it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences imposed in other matters. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.[3][3]Hili v The Queen (2010) 242 CLR 520, 538–539 [58]–[59], referring to Wong v The Queen (2001) 207 CLR 584. In R v Pham, French CJ, Keane and Nettle JJ emphasised that appellate intervention:[4]“… is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.” [4](2015) 256 CLR 550, 559 [28]. At the hearing of this application, the applicant’s counsel drew the Court’s attention to the same appellate and first instance sentence cases that had been relied upon by the parties at the sentencing hearing. Whilst it was submitted that the sentences considered or imposed in those cases were relevant to the Court’s consideration of whether the sentence imposed upon the applicant was manifestly excessive, it was also accepted that they were of limited assistance. In view of that concession, and the similar concessions made by each of the parties before the sentencing judge, it is worth repeating what the High Court said about the use of comparable cases in R v Pham:[5]“It is settled that, in the absence of binding authority from this Court, an intermediate appellate court must follow a statement of legal principle by another intermediate appellate court unless persuaded that it is plainly wrong. It is also settled that a ‘sentence itself gives rise to no binding precedent’. Where, however, decisions of other courts in sentencing appeals are referred to in the context of determining whether a given sentence is manifestly excessive or inadequate, it should now be accepted that intermediate appellate courts must have regard to sentencing decisions of other intermediate appellate courts in comparable cases as ‘yardsticks’ that may serve to illustrate (although not define) the possible range of sentences available. A court must have regard to such a decision in this way unless there is a compelling reason not to do so, which might include where the objective circumstances of the crime or subjective circumstances of the offender are so distinguishable as to render the decision irrelevant, or where the court is persuaded that the outcome itself in the other court was manifestly excessive or inadequate.”[5]Ibid, 559–560 [29] (citations omitted).