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R v Barreto[2022] QCA 70

SUPREME COURT OF QUEENSLAND

CITATION:

R v Barreto [2022] QCA 70

PARTIES:

R

v

BARRETO, Jayden Michael

(applicant)

FILE NO/S:

CA No 321 of 2021

DC No 1789 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 8 December 2021 (McDonnell DCJ)

DELIVERED ON:

10 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2022

JUDGES:

Fraser and McMurdo and Bond JJA

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 was sentenced to concurrent terms of three years and two years of imprisonment for offences of doing grievous bodily harm and unlawful wounding – where it was ordered that the applicant be released on parole after serving nine months – where this parole release date was one quarter of the applicant’s period of imprisonment – where the applicant seeks immediate release on parole – whether the parole release date was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was sentenced to concurrent terms of three years and two years of imprisonment for offences of doing grievous bodily harm and unlawful wounding – where it was ordered that the applicant be released on parole after serving nine months – where the applicant’s offending was described by counsel as “spontaneous” rather than being “pre-meditated offending or offending without context…” – where the sentencing judge found that the offending was not “an impulsive act” and did not sentence the applicant upon the basis that he acted “spontaneously” – whether the judge erred in so sentencing the applicant

COUNSEL:

B J Power QC for the applicant

E J Coker for the respondent

SOLICITORS:

Fisher Dore for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    FRASER JA:  I agree with the reasons for judgment of McMurdo JA and the order his Honour proposes.
  2. [2]
    McMURDO JA:  The applicant was sentenced, having pleaded guilty, to concurrent terms of three years and two years of imprisonment for offences of doing grievous bodily harm and unlawful wounding.  It was ordered that he be released on parole after serving nine months.
  3. [3]
    The offences were committed in the same incident on 13 June 2020.  The facts were not in dispute.  The complainant was then aged 20 and the applicant was aged 22 years.  They knew each other from high school.  The complainant had lived at a unit with his then girlfriend (A), and in the months leading up to the incident, the applicant had been allowed to stay there.  However the two men fell out, as did the complainant and A.  The complainant moved out of the house shortly prior to the incident.
  4. [4]
    On a day prior to the incident, the complainant’s mother went the unit to return the complainant’s keys to A.  She saw the applicant there with A.  The applicant abused her and she returned home and told the complainant what had happened.
  5. [5]
    On the next day, the complainant decided to collect his belongings which he had left in the unit, and he went there with his father because some of the items were heavy.  Before doing so, the complainant messaged A’s mother, saying:

“Not sure if you know but your daughter is back on all her drugs I assume sleeping with [the applicant] once again. My mother picked my shit up yesterday to him being there abusing her calling her fat. So I would like you to please inform your daughter I’ll be there very shortly to collect my furniture and his legs...asap please...so quick get her time to get him out cause I'm about there and not happy.”

The complainant sent a further message to A’s mother saying:

“I don't want a scene, fuck her, she’s done this, I'm hurting … myself, she is sitting there with a junkie cunt, the door better be unlocked as I want my shit, thank you.”

Those messages were passed on to A, and in turn to the applicant.

  1. [6]
    The complainant and his father arrived at the unit building, parked across the road and walked to the front door.  Through the glass he could see the applicant walking towards the door and holding a knife in one hand.  It was a steak knife with a serrated blade, about 11.5 cm in length.
  2. [7]
    The applicant opened the door and grabbed the complainant around the throat with one hand, whilst holding the knife by his side with his other hand.  He told the complainant to “fuck off”.  The complainant then punched him twice in the face and a scuffle ensued, in the course of which the applicant stabbed the complainant twice in the left upper quadrant of his back.  That stabbing constituted the offence of doing grievous bodily harm.
  3. [8]
    The complainant’s father then intervened.  He grabbed the applicant’s arm which was holding the knife and the two of them fell to the ground.  The father unsuccessfully tried to get the knife from the applicant, before the complainant again punched the applicant in the head, before putting him into a chokehold.  At that point the applicant managed to stab the complainant again, this time twice in the back of his right thigh.  That stabbing constituted the applicant’s other offence.
  4. [9]
    The complainant’s father managed to separate the two young men and he and his son then left.  The father called police before driving the complainant toward a hospital.  On the way, the father had sufficient concern for his son that he stopped at a medical centre, where an ambulance was called.  The complainant underwent surgery and was discharged from hospital on the following day.
  5. [10]
    Meanwhile, when police had arrived at the unit (where they found the applicant hiding in the roof) he still had the steak knife.  He told police that he became aware that the complainant was “coming for my legs”.  He claimed that there was no knife involved and that he did not know how the complainant had been stabbed.
  6. [11]
    The indictment was presented in September 2021, the applicant pleaded guilty and he was sentenced on 8 December 2021.  This was acknowledged to be an early plea of guilty.  It appears other and yet more serious charges had been withdrawn before the subject indictment was presented.
  7. [12]
    During the period of 18 months from the offending until the sentence hearing, the applicant had demonstrated a high level of rehabilitation.  He had successfully engaged with a psychiatrist to address his mental health, which according to uncontested evidence was a significant factor in this offending.  He was employed full time when he was sentenced.  He had a history of self-harm when he was aged 19 to 20 and he had attempted suicide through a drug overdose.  During the 18 month period before he was sentenced, he had obeyed a curfew and had reported to police every week.  He had some criminal history prior to these offences, but nothing of this seriousness and he had not been to prison.  He wrote a letter of apology which was tendered at the hearing, and offered to make monetary compensation to the complainant in the amount of $5,000.  The sentencing judge ordered that it be paid.
  8. [13]
    At the sentencing hearing, the applicant’s counsel submitted that there were features of this case which made it relatively less serious.  It was said that the applicant had not sought the confrontation, and that he had only thought to arm himself with the knife when confronted by two persons.  It was submitted that there was a “spontaneity” to the applicant’s actions rather than this being “pre-meditated offending or offending without context …”.[1]  It was submitted that the applicant had acted excessively in self-defence, a point with which the prosecutor appeared to agree.[2]
  9. [14]
    In her sentencing remarks, the judge detailed the facts before, in a passage which is the subject of the first of the proposed grounds of appeal, her Honour said:[3]

“Your offending behaviour was not a proportionate response, despite the text messages. You could have left the premises before the complainant arrived or you could have not answered the door. You had opportunities to avoid the confrontation. Instead, you were aggressive immediately upon opening the door. I do not accept it was an impulsive act. Rather, you armed yourself with a knife.”

A little further on, her Honour said:[4]

“Accepting that you acted excessively in self-defence, in the circumstances the response was excessive. It was a serious offence of violence involving the use of a knife. There were repeated stabs with the knife where you struck the leg and torso of the complainant. Strikes to the torso were potentially life-threatening. The complainant himself was unarmed. You armed yourself from the outset, grabbing the … complainant immediately upon opening the door.”

  1. [15]
    There is no challenge in this Court to the sentences of three years and two years which were imposed in this case.  It is unnecessary to discuss comparable cases which well justify that concession.  What the applicant seeks is an immediate release on parole.  It is to be noted that the judge ordered that the applicant be released after serving only one quarter of the period of imprisonment.
  2. [16]
    There are two grounds of his proposed appeal.  One is that the sentence was manifestly excessive, by reason of the parole release date.  The other ground, which received more emphasis in the applicant’s argument, is that a specific error was made by the judge in finding that the offending was not “an impulsive act”, and in not sentencing the applicant upon the basis that he had acted “spontaneously” in stabbing the complainant.  That argument focusses upon the passage which I have set out earlier.
  3. [17]
    In my opinion, the judge did not mistake the agreed facts in making those remarks.  Her Honour accepted that the applicant was not the original aggressor and that instead, he took up the knife with the intention of defending himself.  She accepted the submission by the applicant’s then counsel that this was not pre-meditated offending, and that it could be characterised as an excessive use of force in self-defence.  In remarking that this was not “an impulsive act”, her Honour was referring to the applicant’s aggression “immediately upon opening the door”, not any of the acts of stabbing.  Consequently, it is not demonstrated that her Honour sentenced the applicant upon a factual basis different from that which was common ground between the prosecution and the defence.  This ground of appeal could not be accepted.
  4. [18]
    As to the parole release date, the judge correctly recognised the seriousness of these offences, involving excessive violence with the use of a knife against a complainant who was unarmed.  This conduct can be understood by reference to the applicant’s mental state at this early stage of his adulthood, compounded by his then use of illicit drugs and what the judge described as poor friendship choices.[5]  Nevertheless the judge was not obliged to keep the applicant out of prison when the seriousness of the offences is considered.  The question is whether requiring the applicant to serve as many as nine months in custody reveals that the judge must have made some unidentified error in weighing the relevant considerations and applying the relevant principles.  The applicant’s argument does not demonstrate that to be the case.  The applicant could well have been required to spend, say, only six months before being released.  But that does not demonstrate an error in an order that he be released after nine months.  This ground could not succeed.
  5. [19]
    I would order that the application for leave to appeal be refused.
  6. [20]
    BOND JA:  I agree with the reasons for judgment of McMurdo JA and with the order proposed by his Honour.

Footnotes

[1] AR 22-23.

[2] AR 26.

[3] AR 31.

[4] AR 32-33.

[5] AR 32.

Close

Editorial Notes

  • Published Case Name:

    R v Barreto

  • Shortened Case Name:

    R v Barreto

  • MNC:

    [2022] QCA 70

  • Court:

    QCA

  • Judge(s):

    Fraser JA, McMurdo JA, Bond JA

  • Date:

    10 May 2022

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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