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The King v ER [2022] QCA 202

The offender was sentenced following pleas of guilty to 3 counts of using a carriage service to cause offence contrary to s 474.17(1) of the Commonwealth Criminal Code. Original sentence imposed 9 months imprisonment to be released after 3 months on recognizance of $2,000 to be of good behaviour for 3 years. Offender appealed on the grounds that the sentencing judge erred in refusing to adjourn the sentence for the purpose of the provision of a report that would address the issues of difficulties in custody, erred in assessing or assigning weight to offender’s subjective motivation, and that the sentence was manifestly excessive.

Physical Condition: In 2017, the offender suffered strokes and other neurological events which had caused some paralysis and left them with an acquired brain injury. Offender applied to adjourn the case after the sentencing judge indicated that a sentence involving actual custody was being considered. This was said to be necessary to allow the offender to put on evidence of the physical challenges faced by them in serving actual custody and to seek evidence from a forensic psychologist for the purposes of assessing the prospects of reoffending. The sentencing judge refused the application for an adjournment on both bases. There is obvious unfairness in refusing offender the opportunity for an adjournment to present evidence as to the effect of a sentence of actual custody, having regard to the offender’s neurological and physical deficits, which warranted an NDIS package and weekly care. As the physical and mental condition of the offender was a matter that was to be specifically taken into account in the exercise of the sentencing discretion under s 16A(2)(m), the refusal of an adjournment to obtain evidence in relation to the effects of a period of actual custody on offender was an error which warrants a re-exercise of the sentencing discretion.

Manifest Excess: Although offender had engaged in reprehensible criminal behaviour, they had entered early pleas of guilty, had no relevant prior criminal history, had a good work history and were sentenced on the basis that their criminal conduct involved a one-off event and that they were not at a high risk of reoffending. The sentencing judge’s finding that no sentence apart from a sentence of actual imprisonment was appropriate evidenced a misapplication of sentencing principles, resulted in the imposition of a sentence that was plainly unjust and unreasonable.

Leave to appeal granted. Appeal allowed. Offender resentenced to 9 months imprisonment to be released immediately on recognizance of $2,000 to be of good behaviour for 3 years.
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