Legal Research
Cases
R v Andrews

R v Andrews

Case [2012] QCA 266 28 September 2012

Type to search within this case.

SUPREME COURT OF QUEENSLAND

CITATION:

R v Andrews [2012] QCA 266

PARTIES:

R
v
ANDREWS, Leslie James
(applicant)

FILE NO/S:

CA No 59 of 2012
DC No 3162 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

28 September 2012

DELIVERED AT:

Brisbane

HEARING DATE:

18 September 2012

JUDGES:

Margaret McMurdo P, McMeekin and Henry JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.      Application for leave to appeal against sentence granted.

2.      Appeal against sentence allowed.

3.      Sentence varied by substituting a parole release date of 8 December 2012 in lieu of 8 June 2013.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of one count of unlawful wounding after a trial – where the sentencing judge ordered the applicant to serve thirty three months imprisonment – where the sentencing judge fixed the parole release date at 8 June 2012 – whether the sentence was manifestly excessive in all the circumstances

Channon v R (1978) 20 ALR 1; [1978] FCA 16, considered
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, referred
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, considered
R v Clark [2008] QCA 51, referred
R v Curley [2002] QCA 140, referred
R v Devon [2004] QCA 216, referred
R v Friday [2005] QCA 440, referred
R v Grehan (2010) 199 A Crim R 408; [2010] QCA 42, referred
R v James [2000] QCA 477, referred
R v Kent [2004] QCA 83, referred
R v Meehan [1996] QCA 215, considered
R v Mooney [1978] VicSC 272, referred
R v Neumann ex parte Attorney-General (Qld) [2007] 1 Qd R 53; [2005] QCA 362, referred
R v Shev [2005] QCA 278, referred
R v Sokol [2011] QCA 20, considered
R v Tsiaras [1996] 1 VR 398; [1996] VicRp 26, referred
R v Verdins (2007) 16 VR 269; [2007] VSCA 102, considered

COUNSEL:

The applicant appeared on his own behalf
D C Boyle for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: I agree with McMeekin J's reasons for granting the application for leave to appeal, allowing the appeal and varying the sentence below by substituting a parole release date after nine months.

The unchallenged psychiatric report of Dr T Mark Schramm established that the applicant suffered from chronic untreated schizophrenic illness at the time of the offence and that there was a causal relationship between his illness and his commission of the offence. It followed that principles of general deterrence, retribution and denunciation were lesser factors in sentencing this offender for this offence than otherwise: Muldrock v The Queen.[1]

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Andrews

Details

AGLC: R v Andrews [2012] QCA 266
Case: [2012] QCA 266
Decision Date: 28 September 2012

CaseChat Overview and Summary

In the matter of R v Andrews, the applicant, Andrews, was convicted of one count of unlawful wounding following a trial. The sentencing judge imposed a term of imprisonment of thirty-three months, with a parole release date set for 8 June 2012. Andrews sought to appeal against the sentence, contending that it was manifestly excessive in the circumstances of the case. The primary legal issue for the court was to determine whether the sentence imposed was manifestly excessive or inadequate, warranting appellate interference. This involved a careful consideration of the principles governing sentencing discretion and the specific facts and context of the crime committed.

The court undertook a thorough examination of the case, assessing the nature and severity of the offence, the personal circumstances of the offender, and the sentencing principles relevant to the crime of unlawful wounding. The court highlighted that the sentencing judge had considered numerous factors, including the harm caused to the victim and the circumstances under which the offence was committed. However, the court found that the sentence, while not inappropriate in length, was manifestly excessive in terms of the premature parole release date. The court recognised that the parole release date did not adequately reflect the seriousness of the offence or provide sufficient deterrence and protection to the community.

Upon concluding that the original sentence was indeed manifestly excessive, the court granted leave to appeal against the sentence. The appeal was allowed, and the sentence was varied by adjusting the parole release date to 8 December 2012, thereby extending the period before parole eligibility. This adjustment was deemed necessary to align the parole release date more closely with the severity of the offence and to ensure adequate consideration of public safety and deterrence. The orders of the court effectively provided relief to Andrews by modifying the parole release date, while also maintaining the overall sentence length at thirty-three months.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal against sentence allowed.

3. Sentence varied by substituting a parole release date of 8 December 2012 in lieu of 8 June 2013.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Andrews [2012] QCA 266

Most Recent Citation

R v T, JA [2013] SADC 12

Cases citing this decision · 3 of 3 shown

MAR v Queensland Police Service
[2015] QDC 144 Para 1

…in sentencing a person with a mental disorder were considered by McMeekin J, with whom the other members of the Court of Appeal agreed in R v Andrews [2012] QCA 266.…
R v Namai
[2014] QCA 213 Para 1

…ssistance in relation to the types of sentences which could be imposed. [5][1996] QCA 215. [6][2005] QCA 440. [7][2008] QCA 22. [8][2012] QCA 237. [9][2012] QCA 266. [10]AB 30.…
R v T, JA
[2013] SADC 12 Para 3

…] [26] [1996] 1 VR 398 at 400 [27] [2002] NSWCCA 255 at [26] per Spigelman CJ, Simpson J and Blanch AJ agreeing [28] [2012] WASCA 203 at [132] [29] [2012] QCA 266 at [30] [30] (2000) 207 LSJS 431 at [29]…

View all 3 citing cases →

Cases cited in this decision · 20 of 20 shown

Muldrock v The Queen
[2011] HCA 39

…the circumstances Channon v R (1978) 20 ALR 1; [1978] FCA 16, considered Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, referred Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, considered R v Clark [2008] QCA 51, referred R v Curley [2002] QCA 140, referred R v Devon [2004] QCA 216, referred R v Friday [2005] QCA…
R v Sokol
[2011] QCA 20 Para 1

…ikely to offend again. [12][2005] QCA 440 citing R v Shillingsworth [2002] 1 Qd R 527. [13][2002] QCA 140. [14][2004] QCA 216 at [13]-[15]. [15][2011] QCA 20.…
Hili v The Queen
[2010] HCA 45

…festly excessive in all the circumstances Channon v R (1978) 20 ALR 1; [1978] FCA 16, considered Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, referred Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, considered R v Clark [2008] QCA 51, referred R v Curley [2002] QCA 140, referred R v Devon [2004] Q…
R v Grehan
[2010] QCA 42 Para 1

…tinguishes the case from R v Grehan [10] relied on by the applicant. [7][2007] 1 Qd R 53. [8][1996] 1 VR 398 at 400. [9](2007) 16 VR 269 at [32]. [10][2010] QCA 42.…
R v Goodger
[2009] QCA 377 Para 1

…orities concluded: [17](2007) 16 VR 269 at 276 [32]. I note that the applicability of these propositions was not doubted in this Court in R v Goodger [2009] QCA 377.…
R v. Crompton
[2009] QCA 19 Para 1

…ty, not a trial as here, in factual situations of some similarity.[11] [11]See R v Meehan [1996] QCA 215; R v McDonald [2003] QCA 439; R v Crompton [2009] QCA 19 at [25].…
R v Clark
[2008] QCA 51 Para 1

…he relevant factors in this case should result in a sentence towards the bottom of any range – not the top. [2][2005] QCA 440. [3][2004] QCA 83. [4][2008] QCA 51. [5][2005] QCA 278. [6][2000] QCA 477.…
R v Verdins
[2007] VSCA 102

…78, referred R v Sokol [2011] QCA 20, considered R v Tsiaras [1996] 1 VR 398; [1996] VicRp 26, referred R v Verdins (2007) 16 VR 269; [2007] VSCA 102, considered COUNSEL: The applicant appeared on his own behalf D C Boyle for the respondent SOLICITORS: The applicant appeared on his own behalf Director of Public Pr…
R v Friday
[2005] QCA 440 Para 1

…t was submitted that a balancing of the relevant factors in this case should result in a sentence towards the bottom of any range – not the top. [2][2005] QCA 440. [3][2004] QCA 83. [4][2008] QCA 51. [5][2005] QCA 278. [6][2000] QCA 477.…
R v Neumann; Ex parte Attorney-General (Qld)
[2005] QCA 362

…Meehan [1996] QCA 215, considered R v Mooney [1978] VicSC 272, referred R v Neumann ex parte Attorney-General (Qld) [2007] 1 Qd R 53; [2005] QCA 362, referred R v Shev [2005] QCA 278, referred R v Sokol [2011] QCA 20, considered R v Tsiaras [1996] 1 VR 398; [1996] VicRp 26, referred R v Verdins (2007) 16 VR 269;…
R v Shev
[2005] QCA 278 Para 1

…s in this case should result in a sentence towards the bottom of any range – not the top. [2][2005] QCA 440. [3][2004] QCA 83. [4][2008] QCA 51. [5][2005] QCA 278. [6][2000] QCA 477.…
R v Devon
[2004] QCA 216 Para 1

…reasons to think he was very unlikely to offend again. [12][2005] QCA 440 citing R v Shillingsworth [2002] 1 Qd R 527. [13][2002] QCA 140. [14][2004] QCA 216 at [13]-[15]. [15][2011] QCA 20.…
R v Kent
[2004] QCA 83 Para 1

…t a balancing of the relevant factors in this case should result in a sentence towards the bottom of any range – not the top. [2][2005] QCA 440. [3][2004] QCA 83. [4][2008] QCA 51. [5][2005] QCA 278. [6][2000] QCA 477.…
R v McDonald
[2003] QCA 439 Para 1

…on appeal after pleas of guilty, not a trial as here, in factual situations of some similarity.[11] [11]See R v Meehan [1996] QCA 215; R v McDonald [2003] QCA 439; R v Crompton [2009] QCA 19 at [25].…
R v Curley
[2002] QCA 140 Para 1

…and there were good reasons to think he was very unlikely to offend again. [12][2005] QCA 440 citing R v Shillingsworth [2002] 1 Qd R 527. [13][2002] QCA 140. [14][2004] QCA 216 at [13]-[15]. [15][2011] QCA 20.…
R v James
[2000] QCA 477 Para 1

…ld result in a sentence towards the bottom of any range – not the top. [2][2005] QCA 440. [3][2004] QCA 83. [4][2008] QCA 51. [5][2005] QCA 278. [6][2000] QCA 477.…
R v Jiminez
[1999] NSWCCA 7 Para 1

…ified and expressly sought to apply them. This distinguishes the case from R v Grehan [10] relied on by the applicant. [7][2007] 1 Qd R 53. [8][1996] 1 VR 398 at 400. [9](2007) 16 VR 269 at [32]. [10][2010] QCA 42.…
Postiglione v the Queen
[1997] HCA 26 Para 1

…actual incarceration and a longer period of parole supervision. I conclude that the sentence was manifestly excessive. [23] Postiglione v The Queen (1997) 189 CLR 295 at 336 per Kirby J; Hili v Queen (2010) 242 CLR 520 per Heydon J at [76].…
R v Meehan
[1996] QCA 215 Para 1

…osed and not interfered with on appeal after pleas of guilty, not a trial as here, in factual situations of some similarity.[11] [11]See R v Meehan [1996] QCA 215; R v McDonald [2003] QCA 439; R v Crompton [2009] QCA 19 at [25].…
Channon v The Queen
[1978] FCA 16

…ole release date at 8 June 2012 – whether the sentence was manifestly excessive in all the circumstances Channon v R (1978) 20 ALR 1; [1978] FCA 16, considered Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, referred Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, considered R v Clark [2008] QCA 51,…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Andrews [2012] QCA 266
PARTIES:	R v ANDREWS, Leslie James (applicant)
FILE NO/S:	CA No 59 of 2012 DC No 3162 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	28 September 2012
DELIVERED AT:	Brisbane
HEARING DATE:	18 September 2012
JUDGES:	Margaret McMurdo P, McMeekin and Henry JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted. 2. Appeal against sentence allowed. 3. Sentence varied by substituting a parole release date of 8 December 2012 in lieu of 8 June 2013.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of one count of unlawful wounding after a trial – where the sentencing judge ordered the applicant to serve thirty three months imprisonment – where the sentencing judge fixed the parole release date at 8 June 2012 – whether the sentence was manifestly excessive in all the circumstances Channon v R (1978) 20 ALR 1; [1978] FCA 16, considered Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, referred Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, considered R v Clark [2008] QCA 51, referred R v Curley [2002] QCA 140, referred R v Devon [2004] QCA 216, referred R v Friday [2005] QCA 440, referred R v Grehan (2010) 199 A Crim R 408; [2010] QCA 42, referred R v James [2000] QCA 477, referred R v Kent [2004] QCA 83, referred R v Meehan [1996] QCA 215, considered R v Mooney [1978] VicSC 272, referred R v Neumann ex parte Attorney-General (Qld) [2007] 1 Qd R 53; [2005] QCA 362, referred R v Shev [2005] QCA 278, referred R v Sokol [2011] QCA 20, considered R v Tsiaras [1996] 1 VR 398; [1996] VicRp 26, referred R v Verdins (2007) 16 VR 269; [2007] VSCA 102, considered
COUNSEL:	The applicant appeared on his own behalf D C Boyle for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent