R v Babsek; Ex parte - [1999] QCA 364

IN THE COURT OF APPEAL [1999] QCA 364
SUPREME COURT OF QUEENSLAND
C A No 213 of 1999
Townsville
[R v Babsek; Ex parte Attorney-General]
THE QUEEN
v
CAROLINE ANGELA BABSEK
Respondent
EX PARTE: ATTORNEY-GENERAL OF QUEENSLAND
Appellant
McMurdo P Pincus JA Thomas JA

Judgment delivered 7 September 1999.
Judgment of the Court.
APPEAL ALLOWED. SENTENCE IMPOSED BELOW VARIED BY DELETING NINE YEARS AND SUBSTITUTING TEN YEARS, AND BY OMITTING THE RECOMMENDATION FOR PAROLE. SENTENCE BELOW OTHERWISE CONFIRMED.

CATCHWORDS:

CRIMINAL LAW - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL - APPLICATION TO INCREASE SENTENCE - OFFENCES AGAINST THE PERSON - whether sentence of nine years with parole recommendation after three years for manslaughter of de facto manifestly inadequate - whether sufficient weight given to general and specific deterrence - that violence not an option when relationships end - whether sufficient weight given to impact of crime on victims - whether judge erred in finding respondent had “no predisposition to violence” - whether judge erred in taking into account the respondent’s suffering - whether judge erred in finding respondent remorseful.

R v Whiting [1995] 2 QdR 199, R v Miguel CA 351 of 1994, 25 October 1994, R v Auberson CA 248 and 249 of 1996, 3 September 1996, R v Haack; Ex parte Attorney-General CA 430 and 442 of 1998, 18 March 1999, [1999] QCA 76 considered.
Counsel: Mr J D Henry for the appellant.
Mr P J Davis for the respondent.
Solicitors: Director of Public Prosecutions (Queensland) for the appellant.
Arnel and Cooper for the respondent.
Hearing Date: 28 July 1999
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 7 September 1999

Caroline Babsek was convicted on 10 February 1999 in the Supreme Court at Cairns of the manslaughter on 18 May 1996 of Simon de Luca, her former de facto. She was sentenced to nine years imprisonment with a recommendation for eligibility for parole after serving three years. The appellant, the Attorney-General of Queensland, claims the sentence imposed is manifestly inadequate.
The respondent, who was 24 at the time of the commission of the offence, had been friends with the deceased since she was 18. They lived together from about 1994 after their child, Drew, was born, until 1996 when the relationship began to break down. On 21 April 1996 Simon moved to his parents’ home in Tully and the respondent and Drew continued to live in Simon’s parents’ beach house at Mission Beach. The respondent and Simon had sexual relations at least once after the separation when the respondent, but not Simon, wished to continue the relationship.
On the day of the killing, the respondent phoned the De Luca home in Tully to give Simon an opportunity to see Drew before she went to Cairns for the weekend. Simon drove to the beach house, collected Drew and walked to the beach. The respondent followed and Simon confirmed their relationship was finished. The respondent then brought Drew home, apparently by car. Simon followed on foot, which usually took…

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 Babsek; Ex parte

Details

AGLC: R v Babsek; Ex parte [1999] QCA 364
Case: [1999] QCA 364
Decision Date: 7 September 1999

CaseChat Overview and Summary

The appellant, the Attorney-General, sought to appeal against the sentence of the respondent, Babsek, who was convicted of manslaughter. Babsek had been sentenced to nine years in prison, with the possibility of parole after three years. The Attorney-General argued that the sentence was manifestly inadequate, particularly in light of the seriousness of the offence and the need for general and specific deterrence. The appeal was heard by the court, which had to consider whether the trial judge had given sufficient weight to the factors relevant to the sentencing of Babsek.

The court identified several issues to be resolved in this appeal. The primary issue was whether the sentence imposed by the trial judge was manifestly inadequate. The court also had to consider whether the trial judge had given sufficient weight to the need for general and specific deterrence, the impact of the crime on the victim, and whether the judge had erred in finding that Babsek had no predisposition to violence, that he was remorseful, and that his suffering should be taken into account.

The court found that the sentence imposed by the trial judge was manifestly inadequate, particularly in light of the need for general and specific deterrence. The court held that the trial judge had not given sufficient weight to the impact of the crime on the victim, and had erred in finding that Babsek had no predisposition to violence and that he was remorseful. The court also found that the trial judge had erred in taking into account Babsek’s suffering. The court varied the sentence imposed by the trial judge by deleting the nine-year sentence and substituting a ten-year sentence, and by omitting the recommendation for parole. The court otherwise confirmed the sentence imposed by the trial judge.

The court allowed the appeal and varied the sentence imposed by the trial judge. The nine-year sentence was deleted and replaced with a ten-year sentence, and the recommendation for parole was omitted. The court confirmed the sentence imposed by the trial judge in all other respects.

Orders

Orders of the court

APPEAL ALLOWED. SENTENCE IMPOSED BELOW VARIED BY DELETING NINE YEARS AND SUBSTITUTING TEN YEARS, AND BY OMITTING THE RECOMMENDATION FOR PAROLE. SENTENCE BELOW OTHERWISE CONFIRMED.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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IN THE COURT OF APPEAL	[1999] QCA 364
SUPREME COURT OF QUEENSLAND

CATCHWORDS:	CRIMINAL LAW - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL - APPLICATION TO INCREASE SENTENCE - OFFENCES AGAINST THE PERSON - whether sentence of nine years with parole recommendation after three years for manslaughter of de facto manifestly inadequate - whether sufficient weight given to general and specific deterrence - that violence not an option when relationships end - whether sufficient weight given to impact of crime on victims - whether judge erred in finding respondent had “no predisposition to violence” - whether judge erred in taking into account the respondent’s suffering - whether judge erred in finding respondent remorseful.
*R v Whiting* [1995] 2 QdR 199, R v Miguel CA 351 of 1994, 25 October 1994, R v Auberson CA 248 and 249 of 1996, 3 September 1996, R v Haack; Ex parte Attorney-General CA 430 and 442 of 1998, 18 March 1999, [1999] QCA 76 considered.
Counsel:	Mr J D Henry for the appellant. Mr P J Davis for the respondent.
Solicitors:	Director of Public Prosecutions (Queensland) for the appellant. Arnel and Cooper for the respondent.
Hearing Date:	28 July 1999