QUEENSLAND SENTENCING MANUAL - Robertson - Livepages

UPDATE 54                                                       MARCH 2021

                                   QUEENSLAND
                                SENTENCING MANUAL

                                          Robertson

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Updated Commentary

     Judge Robertson has updated commentary on:

                            Sentencing Federal Offenders

                             Crimes Act 1914 (Cth)
     General sentencing principles

     Section 16A falls within Div 2 of Pt IB of the Crimes Act 1914 (Cth), which
     is headed “General Sentencing Principles”. There are six other sections in
     this Division. Relevantly, s 16B recognises the principle of totality (see
     [9.130] – [9.180]; s 16C requires a court to take into account the financial
     circumstances of a federal offender before imposing a fine. See [7.30].

                                Purposes of Sentence

                           Penalties and Sentences Act 1992
     Restorative justice

     For a discussion of how these principles work in practice, see the
     judgment of the Court (Henry J, Philippides JJA agreeing) in R v CCOA
     [2020] QCA 231. See [8.91].

                           Factors Personal to the Offender

     Relevance of being held in protective/solitary confinement on remand
     and COVID-19

     In R v KAX [2020] QCA 218, Mullins JA, with whom Philippides JA and
     Brown J agreed, allowed an appeal on another ground but did make
     some observations on this issue. Since the decision of Henry J, the Court
     of Appeal has referred to the COVID-19 restrictions in prisons on a
     number of occasions. See [10.385].

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Other Relevant Circumstances
                                       Parity

     Avoiding a justifiable sense of grievance

     In R v Anthony [2020] QCA 79, the “justifiable sense of grievance” as part
     of the parity principle was misapplied by the primary judge. The Court
     found that in the circumstances of that case, the parity principle did not
     apply. See [11.520].

                               Recording a Conviction

     Not recording a conviction for federal offences

     In R v Price [2008] QCA 330, the applicant was a medical practitioner
     who pleaded guilty to one count of unauthorised writing of
     prescriptions, contrary to a number of sections of the National Health
     Act 1953 (Cth). See [13.15].

            Recording of convictions under the Youth Justice Act 1992

     Principles explained

     In R v FAY [2020] QCA 184, the Court of Appeal, Davis J with whom
     Fraser and Philippides JJA agreed wrote at [12]. See [13.180].

                               The Sentencing Hearing
                                Evidence on sentence

     An error to depart from agreed facts in sentencing
     In R v Surace [2020] QCA 134, the Court of Appeal (Lyons SJA, Mullins JA
     and Ryan J agreeing), held that the sentencing discretion miscarried
     when the sentencing judge departed from the agreed facts in sentencing
     the applicant for a number of offences of violence. See [14.295].

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Use of comparable sentences
     The absence of comparable sentences

     In R v Morant [2020] QCA 135, the applicant had been convicted after a
     trial of counselling his vulnerable wife to kill herself (aiding another to
     commit suicide) and one count of actually aiding her to commit suicide.
     See [14.1065].

     Use of adult comparables in sentencing under the Youth Justice Act
     1992

     In R v Bernard (a Pseudonym) [2020] QCA 232, the Court of Appeal,
     (Sofronoff P, Morrison and Philippides JJA agreeing), dismissed an appeal
     against an order of detention made with a conditional release order
     imposed on a young offender for dangerous driving causing death. See
     [14.1071].

                           Sentencing Options – General
                              Imprisonment (Adults)
                             Imprisonment generally

     Sentencing for several offences at once

     In R v Kruezi [2020] QCA 222 (an unsuccessful appeal against sentences
     imposed on a federal offender, including for a terrorism offence, where
     the primary judge had taken the Nagy approach); McMurdo and Mullins
     JJA (Williams J agreeing that the appeal be dismissed but publishing her
     own reasons). See [15.14].

                                Presentence custody

     Proper construction of s 159A

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Pursuant to the Justice and Other Legislation Amendment Act 2020,
     effective 25 May 2020 the words “and for no other reason” have been
     omitted from s 159A(1). See [15.640].

     Where s 159A does not apply to pre-sentence custody

     R v Rohlf [2020] QCA 105 is a recent example where the Court of Appeal
     (Fraser JA, with whom McMurdo and Mullins JJA agreed), allowed an
     appeal against sentence (by bringing forward parole release to the date
     of the appeal hearing). See [15.750].
                              Serious violent offences

     Not legitimate to structure sentence to avoid declaration as a matter of
     law

     In R v Carrall [2018] QCA 355, an unsuccessful appeal against a head
     sentence of 10 years which attracted the automatic serious violent
     offence declaration, Sofronoff P (with whom Jackson and Bowskill JJ
     agreed) succinctly summarised the proper approach when the
     appropriate sentence to be imposed may attract the automatic
     declaration. See [15.800].

     Meaning of “particularly heinous offence”

     In R v William (a Pseudonym) [2020] QCA 174, Sofronoff P (with whom
     Morrison and Mullins JJA agreed) said of s 176(3)(b) of the Youth Justice
     Act 1992. See [15.1170].

     Sentencing an adult for offences committed as a child
     In R v William (a Pseudonym) [2020] QCA 174, the Court was dealing
     with an applicant who was close to his 18th birthday when he attacked
     his mother with a knife, stabbing her multiple times. See [15.1205].

     Restorative justice orders

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In R v CCO [2020] QCA 231, the Court, Henry J (with whom Philippides
     and McMurdo JJA agreed) allowed an appeal against a sentence which
     involved the combination of a probation order with a restorative justice
     order. See [15.1770].

                                Particular Offences

     Terrorism Offences

     In R v Kruezi [2020] QCA 222, the applicant pleaded guilty to two
     offences, one of which was a breach of s 101.6(1) of the Criminal Code
     (Cth) which, by definition, was a “terrorism offence”. See [16.196].

     Sentencing range

     In R v Lawler [2020] QCA 166, a case of manslaughter by reason of
     provocation under s 304(1) of the Criminal Code (Qld), Wilson J (with
     whom the Chief Justice and Morrison JA agreed) wrote at [26]. See
     [16.450].

     Arson

     If a person is convicted of the lesser offence under s 462 of the Criminal
     Code (Qld) of wilfully and unlawfully setting fire to anything situated so
     that a building is likely to catch fire, the maximum penalty is 14 years
     and not life as it is for arson. See [16.740].

     Juveniles

     In R v DBT [2020] QCA 170, a case involving detention orders made in
     respect of four juveniles aged from 15-17 for a number of sexual
     offences including pack rape. See [16.1030].

     Long delay and remorse held to be “exceptional”

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As a result of amendments to s 9(4) (effective 15 September 2020), the
     sentencing court must have regard to the sentencing practices, principles
     and guidelines applicable when the sentence is imposed rather than
     when the offence was committed. See [16.1100].

                             Miscellaneous Matters
                       Criminal Law Amendment Act 1945

     Meaning of “Minimum penalty … 1 year’s imprisonment served wholly
     in a corrective services facility
     In Commissioner of Police v Broederlow [2020] QCA 161, the Court held
     that the meaning of these terms are unambiguous in their meaning and
     not amenable to any other form of sentence order that did not require
     the offender to spend a minimum of 1 year’s imprisonment in a prison.
     See [17.145].

                             Appeals Against Sentence
                           Appeal to the Court of Appeal
     The “residual discretion”
     In Commissioner of Police v Broederlow [2020] QCA 161, the Court
     (Morrison JA, Sofronoff P and Mullins JA agreeing) made it clear that the
     residual discretion only arises where the Court determines on a Crown
     appeal that the sentence imposed was inadequate for some reason. See
     [18.25].

     The relevance of defence counsel’s submission in lower court

     R v Geddes [2020] QCA 94 is a recent example of the application of the
     general principle enunciated by Keane JA (as his Honour then was) in R v
     Flew [2008] QCA 290. Ryan J (with whom Mullins JA and Lyons SJA
     agreed), after referring to Flew. See [18.35].

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