R v Compton

This matter concerned an application for leave to appeal against a sentence on the ground that the sentence imposed was manifestly excessive. The principal submission made by the applicant was that the sentencing judge had not been referred to a particular appellate authority, which provided a range of appropriate sentences. In doing so, it was argued that the amendments to s 15 of the Penalties and Sentences Act 1992 made by the Criminal Law (Domestic Violence) Amendment Act 2016 altered the approach laid down in Barbaro, and therefore the relevant appellate authority provided the appropriate range to be applied. The Court rejected this submission, holding that the authority of Barbaro as to the proper use to be made of comparable sentences was unaffected by these amendments.

Gotterson and McMurdo JJA and Flanagan J

4 April 2017

This matter concerned an application for leave to appeal against a sentence on the ground that the sentence imposed was manifestly excessive. The applicant, who was convicted of one count of malicious act with intent (domestic violence offence), was sentenced to 7 years’ imprisonment with a parole eligibility date fixed at 1 December 2018. [3].

At the sentencing hearing both the Crown prosecutor and defence counsel agreed as to how the sentence should be structured. [20]. The Crown submitted that an appropriate head sentence was 7 years with no serious violence offence declaration. [20]. Defence counsel agreed with this head sentence and also adopted the structure of the sentence proposed. [20], [22]. However, defence counsel proposed a different parole eligibility date. [22].

The sentencing judge agreed that a head sentence of 7 years’ imprisonment was appropriate and structured the sentence in accordance with the submissions of the Crown and defence counsel. [25]. The parole eligibility date was fixed at 1 December 2018. [26]. This was approximately two months and 20 days less than the date submitted for by the Crown, and around 11 days more than the date argued for by defence counsel. [26].

The basis for the applicant’s submission that the sentence was manifestly excessive was that the learned sentencing judge was not specifically referred to the statement of Keane JA in R v Holland [2008] QCA 200, [63], which suggested that the range of sentences for the type of offence was between four and seven years’ imprisonment. Flanagan J said that the range for these types of offences in R v Holland must now be interpreted in light of Barbaro v The Queen (2014) 253 CLR 58. [34]. In that case the plurality (French CJ, Hayne, Kiefel and Bell JJ) said (Barbaro, 74 [41]):

“[I]n seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence.”

Counsel for the applicant contended that s 6 of the Criminal Law (Domestic Violence) Amendment Act 2016, which amended s 15 of the Penalties and Sentences Act 1992, altered the approach in relation to ranges of sentences referred to in Barbaro. [36]. The effect of that amendment is to permit a sentencing court to receive submissions which state the sentence, or range of sentences, that the party considers appropriate for the court to impose. Counsel for the applicant argued that the amendment had removed the “constrictions placed on the idea of a range … from the point of view of courts deciding cases”. [37]. The applicant sought to establish by reference to the suggested range in R v Holland that the sentence was manifestly excessive. [38].

The Court of Appeal rejected this argument. Flanagan J stated it was “not the proper approach and the amendment to s 15 of the Penalties and Sentences Act 1992 does not affect the proper approach”. [38]. His Honour noted that a similar submission was dealt with by Philip McMurdo JA in R v Cobb [2016] QCA 333. [39]. In that case, his Honour observed that “a decision of an appellate court does not establish even the range of sentences for the particular case which it is deciding”. [39]. Instead, the “appellate court must consider whether the sentence is inside a range within which the discretionary judgment of the sentencing judge could be properly exercised”. [39]. His Honour noted that, in this respect, the amendments to s 15 of the Penalties and Sentences Act 1992 did not affect “the authority of Barbaro upon the proper use to be made by courts of comparable sentences”. [39].

Flanagan J observed that, even by reference to the cases identified by the applicant, the sentence was not manifestly excessive. [40]–[49]. Leave to appeal against the sentence was refused. [50].

J English