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R v Yak[2021] QCA 214

SUPREME COURT OF QUEENSLAND

CITATION:

R v Yak [2021] QCA 214

PARTIES:

R

v

YAK, Phillip Guy

(applicant)

FILE NO/S:

CA No 169 of 2020

DC No 1180 of 2020

DC No 1541 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 31 July 2020 (Clare SC DCJ)

DELIVERED ON:

Date of Order: 8 June 2021

Date of Publication of Reasons: 5 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

8 June 2021

JUDGES:

Sofronoff P and Morrison JA and Flanagan J

ORDER:

Date of Order: 8 June 2021

Final Orders: Refer Appendix “A”.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on multiple personal and property related offences – where the applicant was sentenced to a head sentence of eight years imprisonment – where the applicant appeals the sentence on the grounds of manifest excess and specific error – whether the sentencing judge erred in not taking into account the entire period of pre-sentence custody in remand as part of a pre-sentence custody declaration – whether the sentencing judge failed to take into account the applicant’s guilty plea resulting in the applicant becoming eligible for parole after serving four out of eight years imprisonment – whether this rendered the sentence manifestly excessive

R v Carlisle [2017] QCA 258, cited

COUNSEL:

J Robson for the applicant

D Nardone for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  The applicant is now a 24 year old man.  Since he was 16 years old he has spent more than half of his life in detention or in prison.  With two exceptions, his many offences follow a pattern.  His offences have been break and enter offences, trespass, stealing, receiving tainted property, dishonest application of property, unlawful motor vehicle use and associated offences involving assaults on police.  The aetiology for this unhappy criminal history is easy to find.  After a childhood in a family in which his parents struggled to find enough money to feed themselves and their children, and after his parents separated, the applicant lost interest in school and, almost inevitably, somebody introduced him to methylamphetamine, that most addictive of drugs.  He has been addicted to this drug since he was 14 and his criminal history shows several drug offences.
  2. [2]
    Nonetheless, the applicant managed to earn a Certificate III in Warehousing and a Certificate II in Construction, as well as a first aid certificate, from the Ipswich Bremer TAFE.  He has had employment, usually in part-time roles but he once had a full-time job as a forklift driver.  He also once had a relationship with a young woman, who became pregnant to him but lost the baby.
  3. [3]
    His first set of offences were committed in 2012 when he was 15 years old.  They were break and enter offences, assaults, robbery, receiving tainted property and unlawful use of a motor vehicle for which he received probation and a community service order.  There then followed multiple similar offences every year afterwards (except 2018 when he was incarcerated).
  4. [4]
    In 2014, at the age of 17, he pleaded guilty to numerous offences of the kind typical for him and, as a consequence, convictions were recorded and he was sentenced to five months detention.  There followed successive periods of detention or imprisonment in 2013, 2014, 2015, 2016, 2017 lasting into 2018, 2019 and from early 2020 to the present time.  These periods add up to over three years of incarceration over that length of time.  His period at liberty was almost the same.
  5. [5]
    In 2019, for the first time, the applicant was made the subject of a drug and alcohol treatment order.  According to his counsel’s submissions during sentencing for the offences which are the subject of this application, that order coincided with the loss of his baby and he did not manage to comply.  The order was later revoked and the applicant was imprisoned.
  6. [6]
    He has been the subject of several suspended sentences and probation orders and these have afterwards been revoked or he has been resentenced as a consequence of his commission of further offences.  One such revocation of a suspended sentence, in September 2014, related to a probation order for offences for which he had been sentenced two years previously.
  7. [7]
    Two sets of offences stand out.  In November 2014 the applicant accosted a man in a car while he was brandishing a replica firearm.  The victim was able to drive off.  The applicant was sentenced for this attempted robbery to a suspended sentence of two years, having already served 237 days in custody.  The second atypical set of offences relate to his present application.
  8. [8]
    I quote from Clare DCJ’s sentencing remarks:

“At the end of last year, you joined in a violent home invasion while subject to a drug rehabilitation order. Even though you may have spent no more than 10 minutes in their house, it must have been terrifying for the occupants. You did not know the man who lived in the house, but you subjected him to terrible violence with weapons capable of killing him. His physical injuries were substantial. It happened suddenly and without warning. There were three of you. Your faces were covered by masks. You had the machete. The others carried swords. Mr Deegan had no weapon, no support and a broken leg. He was, therefore, at your mercy in his own home.

It was night-time. You came through the granny flat. One of the occupants fled from you in the granny flat into the house, with the door locking behind her. Mr Deegan then put his weight against the door in an effort to keep you out. It did not work. The door was almost shredded. You began thrashing Mr Deegan to make him give you money. He had no money. You repeatedly used the machete on his knee, wounding him. Someone put the blade of a sword under Mr Deegan’s eye, nicking the skin. The third offender swung his sword. Mr Deegan had to use his arm to protect himself. He was struck with such force that his bone was broken as the sword struck through skin. He needed surgery and a cast. You did not get what you had come for, but you did leave behind prints, and the weapons were found at your house.

Before you were found by police, you committed a series of summary offences. You were found with a stolen phone. You were driving a stolen car. You were actually a disqualified driver with a bad traffic history. A day later, the stolen car was stopped by police. Everyone inside it fled, but a police dog found you. You then wrestled with police. They found a small bag of methylamphetamine and other drugs on you. You tried to give a false name. Then in the cells, you attacked property.”

  1. [9]
    The result of this was an indictment charging one count of breaking and entering while armed with a dangerous weapon and in company, two counts of unlawful wounding and one count of assault with intent to steal, using actual violence, in company while armed with dangerous weapons.
  2. [10]
    The learned judge rightly characterised the offences as serious and as constituting a threat to the whole community which must be denounced in the clearest terms and in the strongest way.  However, her Honour also acknowledged some strongly mitigating features in the applicant’s circumstances.  Her Honour said:

“The need for deterrence and just punishment require a substantial prison sentence, but because of your age, I think it is preferable to structure a sentence that offers positive encouragement for your rehabilitation. If you can demonstrate rehabilitation in custody and satisfy the parole authorities that you are an appropriate person for release, then you should be allowed to return to the community under an extended period of supervision on parole.”

  1. [11]
    Her Honour sentenced the applicant for these offences to eight years imprisonment for each of the break and enter offence and the assault, and to four years imprisonment for each of the unlawful wounding offences.  Her Honour took into account the applicant’s pre-sentence custody but did not declare it.  Her Honour set a parole eligibility date of 1 January 2024 to reflect the applicant’s plea of guilty and the partially cumulative effect of the sentence on the sentence of two years which he was then serving.
  1. [12]
    The period of pre-sentence custody which was put forward to her Honour was 117 days.  The real period was 201 days.  Mr Nardone, who appeared for the respondent on this application, has rightly conceded that the sentencing proceeded upon an erroneous basis for that reason and that leave to appeal should, therefore, be granted.
  2. [13]
    Although the applicant submitted that his sentence was manifestly excessive, the substantial ground upon which he relied was that the sentence, as it stood, failed adequately to reflect his guilty plea because, even taking into account the undeclared pre-sentence custody, the result is that he will become eligible for parole only after he has served four years of his eight year term.
  3. [14]
    In my respectful opinion, Clare DCJ was right in her observations about the applicant’s mitigating factors.  For those reasons, the applicant should be afforded a real opportunity to demonstrate his ability to build a life if he can, that has been so severely damaged by a drug to which he became addicted at an age at which he lacked the experience to know the seriousness of the danger posed to him by methylamphetamine.  He has been the subject of an almost crushing series of sentences while still a very young man.  Full effect should be given to the actual presentence custody that he has served and he should also be given the full benefit of his acknowledgement of his responsibility which he has shown by his pleas of guilty.
  4. [15]
    For these reasons I joined in the orders made at the hearing and that are set out in the appendix to these reasons.[1] They have the result that the applicant will be imprisoned for eight years, as Clare DCJ ordered, but that he will become eligible for parole on 11 September 2022, which will be after he has served one third of the term of eight years, taking into account pre-sentence custody.[2]
  5. [16]
    MORRISON JA:  I have had the advantage of reading the draft reasons of Sofronoff P.  Those reasons reflect my own reasons for joining in the orders made on 8 June 2021.
  6. [17]
    FLANAGAN J:  I agree with the President.

Footnotes

[1] The applicant was also sentenced for several summary offences with which it is unnecessary to deal.

[2] And in accordance with the principle explained in R v Carlisle [2017] QCA 258.

Close

Editorial Notes

  • Published Case Name:

    R v Yak

  • Shortened Case Name:

    R v Yak

  • MNC:

    [2021] QCA 214

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Morrison JA, Flanagan J

  • Date:

    08 Jun 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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