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R v Barclay[2021] QCA 193

SUPREME COURT OF QUEENSLAND

CITATION:

R v Barclay [2021] QCA 193

PARTIES:

R

v

BARCLAY, James

(applicant)

FILE NO/S:

CA No 27 of 2021

DC No 487 of 2020

DC No 488 of 2020

DC No 489 of 2020

DC No 10 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport – Date of Sentence: 18 January 2021 (Kent QC DCJ)

DELIVERED ON:

7 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

23 August 2021

JUDGES:

Sofronoff P and Fraser JA and North J

ORDER:

Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to four indictments – where the applicant had relevant criminal history in Queensland and New South Wales – where the applicant had offended whilst on bail – where the applicant had offended while in custody – where sentences imposed on indictment 489/20 were to be served cumulatively on sentences imposed on indictments 487/20 and 488/20 – where the sentence imposed on indictment 10/21 was to be served cumulatively on sentences imposed on 487/20, 488/20 and 489/20 – where the applicant was sentenced to an overall head sentence of five years and three months – where the applicant seeks leave to appeal the sentence on the grounds that the sentence is manifestly excessive – whether the overall head sentence imposed was manifestly excessive in all the circumstances

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCEOTHER MATTERS – where the applicant was eligible for parole on 14 June 2021 – where the applicant chose to make application for leave to appeal against sentence in the context of a legislative scheme which prevents him from making an application for parole whilst the appeal is undecided – whether the head sentence imposed was manifestly excessive in all the circumstances

Corrective Services Act 2006 (Qld), s 180(2)(b)

R v Fares [2012] QCA 13, cited

R v Getawan [2014] QCA 235, cited

R v Harnden [2003] QCA 340, cited

R v Luxford [2020] QCA 272, distinguished

R v Omar [2012] QCA 23, cited

COUNSEL:

B J Power for applicant

C L Birkett for respondent

SOLICITORS:

Wallace O'Hagan Solicitors for applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  I agree with the reasons of North J and with the orders proposed by his Honour.
  2. [2]
    FRASER JA:  I agree with the reasons for judgment of North J and the order proposed by his Honour.
  3. [3]
    NORTH J:  On 18 January 2021 the applicant pleaded guilty to four indictments in the District Court at Southport.  He was sentenced and he now seeks leave to appeal against his sentence, the only ground being that the sentence imposed was manifestly excessive.  Details of the four indictments, the counts, the dates of offending and the sentences imposed are:

Indictment 487/20

Count Number

Offence

Date

Sentence imposed

1

Assault occasioning bodily harm

15/1/19

12 months imprisonment

2

Wilful damage

15/1/19

3 months imprisonment

Indictment 488/20

Count Number

Offence

Date

Sentence imposed

1

Common assault – Domestic Violence offence

27/9/17

12 months imprisonment

2

Assault occasioning bodily harm – Domestic Violence offence

27/9/17

2 years imprisonment

Indictment 489/20

Count Number

Offence

Date

Sentence imposed

1

Strangulation in a domestic setting

29/12/19

3 years imprisonment

2

Common assault – Domestic Violence offence

29/12/19

12 months imprisonment

3

Wilful damage

29/12/19

12 months imprisonment

4

Assault occasioning bodily harm whilst armed – Domestic Violence offence

29/12/19

3 years imprisonment

5

Deprivation of liberty – Domestic Violence offence

29/12/19

18 months imprisonment

Indictment 10/21

Count Number

Offence

Date

Sentence imposed

1

Attempting to pervert the course of justice

Divers dates between 13/2/20 and 2/3/20

3 months imprisonment

  1. [4]
    On all counts convictions were recorded.  The terms of imprisonment imposed for indictments 487/20 and 488/20 were ordered to be served concurrently.  With respect to the terms of imprisonment for indictment 489/20 it was ordered that each of the terms be served concurrently with each other but be served cumulatively on the terms of imprisonment imposed for indictments 487/20 and 488/20.  With respect to the term of imprisonment imposed for the count on indictment 10/21 it was ordered to be served cumulatively on indictments 487/20, 488/20 and 489/20.  The effect of these orders was that the overall sentence imposed was one of five years three months imprisonment.  Parole eligibility was set at 14 June 2021 and declarations were made with respect to 490 days of presentence custody.  At the time of sentencing the applicant was 34 years, being between 31 and 33 at the time of the offending.

Prior Criminal History

  1. [5]
    The applicant had a prior criminal history in Queensland[1] and New South Wales.[2]  The Queensland history records numerous convictions dealt with in the Magistrate’s Court from 2010 to 2018.  There are offences against the Bail Act, drug offences and public nuisance offences.  He’s been convicted of contravening directions and assaulting or obstructing police officers.  He has been sentenced to a range of orders including probation, imprisonment and fines.  On 16 August 2010 he was convicted of assault occasioning bodily harm for which he was fined.
  2. [6]
    The New South Wales history contains convictions for domestic violence offending.  On 2 May 2006 he was convicted in the Taree Local Court of contravening a domestic violence order and was fined.  On 19 April 2011 he was convicted in the Taree Local Court of two charges of common assault and one charge of stalking and was sentenced to eight months imprisonment suspended and a bond imposed.  On 15 March 2016 he was convicted in the Taree Local Court of destroying or damaging property and stalking (domestic) and was sentenced to 18 months imprisonment with a non-parole period of 12 months.  On that day he was convicted of common assault and behaving in an offensive manner in / near public place / school.
  3. [7]
    The applicant was on bail for the offences on indictment 488/20 when he committed the offences on indictment 487/20 and was on bail for the offences of both those indictments when he committed the offences on indictment 489/20.  He was in custody when he committed the offence on indictment 10/21.

Circumstances of offending

  1. [8]
    The sentencing proceeded upon statements of fact that were agreed or tendered without objection.  The following is drawn from the statement of facts tendered at the hearing[3] and the summary contained in the respondent’s outline of submissions which the applicant accepts is accurate.
  2. [9]
    The offences on indictment 488/20 occurred first in time.  The applicant and the complainant were in a relationship at the time and a protection order was made on 18 August 2017.  On 27 September 2017 the applicant and the complainant were driving in a car when they had an argument.  The applicant accused the complainant of seeing other men and he spat in her face (common assault) and punched her multiple times in the face (assault occasioning bodily harm).  He refused to take the complainant to get medical treatment and made her stay with him overnight.  It wasn’t until the applicant went to a storage facility to retrieve some belongings that the complainant was able to get help.  She suffered a broken nose and a swollen lip.  He was arrested and charged with these offences on 2 March 2018.
  3. [10]
    Concerning indictment 487/21, on 15 January 2019 the applicant went to the complainant’s[4] house looking for his partner.  The complainant told the applicant that his partner wasn’t there and the applicant shouted at her and called her racist names.  He entered her property and punched her in the face causing her mouth to bleed (assault occasioning bodily harm).  He kicked the gate and the letterbox and ripped the gate off the hinges (wilful damage) before leaving.  The applicant was arrested that day and released on bail.
  4. [11]
    The offences contained on indictment 489/20 occurred on 29 December 2019.  The complainant[5] had been in a relationship with the applicant for about two years but about two months prior they had broken up.  A domestic violence protection order was in place prohibiting the applicant from going to her house without permission.  The applicant went to the complainant’s house (without permission) and began arguing with her.  The complainant asked the applicant to leave but he refused.  When the complainant tried to leave the applicant put his hand around her neck and squeezed so that the complainant could not breathe properly (strangulation).  The complainant managed to get out of the applicant’s grip around her neck but the applicant pulled her by the hair further into the house (common assault).  The applicant then used a shovel and made two holes in the wall in the dining area (wilful damage) and then picked up a cricket bat and hit the complainant on the foot (assault occasioning bodily harm while armed).  The applicant refused to call an ambulance and when the complainant crawled to her bedroom the applicant kicked the door off its hinges and dragged her to the living room.  He made threats to kill the complainant and kept her in the room for about 30 minutes before letting her leave (deprivation of liberty).  The complainant’s neighbours came to help and call police and an ambulance.  The complainant sustained a broken bone in her foot and bruising to her neck, chest, shoulder and lip.
  5. [12]
    The applicant was remanded in custody after committing those offences.  Whilst in custody the applicant made three phone calls to the complainant asking her to visit his legal representatives or trying to persuade her to withdraw her complaint so he could be released.  Those phone calls are the basis of the attempt to pervert the cause of justice charged on indictment 10/21.

Matters referred to by the sentencing judge

  1. [13]
    His Honour noted that the applicant entered a timely plea for which he received full credit, that the applicant was between 31 and 33 years of age at the time of offending and that he was 34 years of age.  He observed that it was an aggravating feature that a number of the offences were domestic violence offences and he took into account that the applicant had been on remand during the pandemic and referred to details of the applicant’s criminal history in Queensland and New South Wales and that offending occurred when the applicant was on bail and also when he was in custody.
  2. [14]
    The prosecution contended for a sentence of approximately six years comprising five years for the offending on the first three indictments and 12 months cumulative for attempting to pervert the cause of justice.[6]  The defence submission was a sentence in the range of four to four and a half years imprisonment incorporating a cumulative sentence of between three and six months on Indictment 10/21.[7]  In response, his Honour said he considered a head sentence between the two ranges contended for was appropriate.[8]

The competing submissions in this court

  1. [15]
    Counsel submitted that a total effective sentence of five years and three months was manifestly excessive.  In particular, he submitted that the accumulation of the sentence of three years in indictment 489/20 upon the effective two years sentence for indictments 487/20 and 488/20 resulted in a sentence that was unreasonable and plainly unjust.  Whilst no complaint was made in relation to the three month cumulative sentence for attempting to pervert the course of justice the fact of its cumulation upon five years resulted, it was submitted, in a total sentence that was unreasonable or plainly unjust.  In support of the contention that the sentence was manifestly excessive counsel for the applicant relied upon the sentence imposed in R v Luxford.[9]  Counsel submitted that in Luxford the offender, who was 37 years of age, committed more serious offences than the applicant and that there were more instances of serious offending.  It was submitted that the sentence imposed in Luxford of four and a half years imprisonment as a head sentence demonstrated that the sentence imposed was manifestly excessive.
  2. [16]
    For the respondent it was submitted that it was not demonstrated that the learned sentencing judge had taken any improper matters or factors into account and that certain aspects of the circumstances applicable in Luxford distinguished that case from the circumstances applying here.

Discussion

  1. [17]
    The contention by the respondent that the circumstances applicable in Luxford distinguish that from the offending here is well made.  In Luxford the offender had no criminal history.  That alone is significant.  But further, in that case psychiatric evidence established that he was suffering from PTSD which reduced his moral culpability and also had the consequence that he would suffer more harshly as a consequence of imprisonment than an offender without the psychiatric illness.[10]  These factors combine so that the circumstances in Luxford are not comparable with this case with the consequence that it offers no guidance as to the sentence that should be imposed here.
  2. [18]
    The circumstances here combine to reveal that the criminality of the applicant’s offending is serious.  They include:
    1. (a)
      The age and maturity of the applicant;
    2. (b)
      His extensive prior criminal history which included assaulting or obstructing police, offences of violence and stalking;
    3. (c)
      That his offending covered in indictments 487/20 and 489/20 occurred when on bail for the offending in 2017 covered by indictment 488/20;
    4. (d)
      That the attempt to pervert the course of justice (indictment 10/21) occurred when in custody;
    5. (e)
      The number of offences characterised as domestic violence offences;
    6. (f)
      The repetition of acts of personal violence against women;
    7. (g)
      The serious injuries threatened and inflicted upon women;
    8. (h)
      The escalation in the seriousness of the violence of the offending when the offending in December 2019 is compared with the earlier violence;
    9. (i)
      The repetition of offending in defiance of court orders designed to protect women.
  3. [19]
    When reviewed in light of the circumstances of the applicant’s offending in this case the decision in Luxford does not suggest that the sentence imposed here was excessive.
  4. [20]
    Turning to the applicant’s submission that the cumulative sentence of five years and three months was manifestly excessive, the sentencing judge had before him three discrete episodes of violent offending each episode occurring at intervals of months.  This is not a circumstance of multiple offending occurring in a single episode.  No criticism can be made of the particular sentence imposed for each of the offences.[11]  Nor was there a submission to that effect.  To the extent his Honour ordered sentences be served concurrently his approach was conventional and in accordance with the presumption created by s 155 of the Penalties and Sentences Act 1992.  The statutory authority for the cumulative sentences is found in s 156.  When regard is had to the serious features of the applicant’s offending[12] I have reached the conclusion that the applicant’s submission should not be accepted.  The effective sentence of five years for the violent offending in the circumstances can not be said to be unreasonable or plainly unjust.[13]
  5. [21]
    Turning to the applicant’s contention that the cumulation of the sentence of three months imposed for attempting to pervert the cause of justice (indictment 10/21) upon the sentence of five years was also excessive, that should be rejected.  It is sufficient to note that the sentences for similar offending considered by the Court in R v Getawan [2014] QCA 235 (15 months) and R v Harnden [2003] QCA 340 (2 years) reveals that the sentence imposed of three months is distinctly moderate.  No injustice was done to the applicant by the order that this sentence be served cumulatively.
  6. [22]
    Nothing about his Honour’s approach to penalty suggests an error of principle nor was the effective total of the sentence imposed of five years and three months outside an appropriate exercise of sentencing discretion in circumstances of the serious offending.
  7. [23]
    The application for leave to appeal the sentence should be refused.

Section 180(2)(b) Corrective Services Act 2008

  1. [24]
    The applicant filed some submissions with the Court before his current legal representatives were retained.  In his submission the applicant complained that he remained in custody past the parole eligibility date set by the sentencing judge (14 June 2021) and that because of the pendency of his application for leave to appeal against sentence the Parole Board would not consider an application for parole.
  2. [25]
    The legislative basis for the practice of the Parole Board is s 180(2)(b) of the Corrective Services Act 2008 which provides that a prisoner cannot apply for a parole order if an appeal has been made to a Court against conviction or sentence until the appeal is decided.  The justification for the prohibition in the circumstance of an application for leave to appeal against sentence can be found in some statements of this Court in R v Fares [2012] QCA 13 at [54] and R v Omar [2012] QCA 23 at [38] to the effect that, for the purposes of the legislative scheme, an application should be treated as an appeal.  Strictly speaking the observations in the two judgments are obiter and it does not appear that the question of whether an appeal against sentence within the meaning of that term in the section includes an application for leave to appeal has been fully explored.  This issue was not agitated by counsel either in written outlines or in submissions before the Court so it is not appropriate for further consideration to be given to this question and it is better for the consideration of it to be left to an appropriate case where the Court has the benefit of full argument.

Footnotes

[1]AR 83-86.

[2]AR 87-93.

[3]AR 98-106.

[4]A different complainant.

[5]A different complainant.

[6]AR 37 l34-44.

[7]AR 55 l8 to AR 56 l20.

[8]AR 79 l2-5.

[9][2020] QCA 272.

[10]See R v Luxford [2020] QCA 272 at [38].

[11]See for example R v BDK [2020] QCA 48 and R v Rowlands [2019] QCA 112.

[12]See para [18].

[13]See Mill v The Queen (1988) 166 CLR 59, Pearce v The Queen (1998) 194 CLR 610 at [45], Johnson v The Queen (2004) 78 ALJR 616 at [26].

Close

Editorial Notes

  • Published Case Name:

    R v Barclay

  • Shortened Case Name:

    R v Barclay

  • MNC:

    [2021] QCA 193

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Fraser JA, North J

  • Date:

    07 Sep 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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