Legal Research
Cases
R v Bird and Schipper

R v Bird and Schipper

Case [2000] QCA 94 24 March 2000

Type to search within this case.

SUPREME COURT OF QUEENSLAND

CITATION: R v Bird and Schipper [2000] QCA 94

PARTIES: R
v
BIRD, Sara Fotini
SCHIPPER, Aleaha Jade
(applicants)

FILE NO/S: CA No 318 of 1999
CA No 325 of 1999
SC No 34 of 1999
SC No 35 of 1999

DIVISION: Court of Appeal

PROCEEDING: Sentence application

ORIGINATING COURT:
Supreme Court at Brisbane

DELIVERED ON: 24 March 2000

DELIVERED AT: Brisbane

HEARING DATE: 25 February 2000

JUDGES: McMurdo P, Pincus JA, Thomas JA
Separate reasons for judgment of each member of the Court, McMurdo P and Pincus JA concurring as to the orders made; Thomas JA dissenting

ORDER: Applications for leave to appeal against sentence granted. Appeals allowed. The sentences are varied as follows: in respect of CA No 318 of 1999, it is ordered that 16 years imprisonment be served instead of 20 years imprisonment, and in respect of CA No 325 of 1999, it is ordered that 9 years imprisonment be served instead of 11 years imprisonment. The sentences at first instance are otherwise confirmed.

CATCHWORDS:
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – OTHER OFFENCES AGAINST THE PERSON – ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM – SENTENCING

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY – convictions for attempted murder and grievous bodily harm with intent to do grievous bodily harm - whether sentences imposed were manifestly excessive – consideration of youth, lack of prior convictions, prior good character, cooperation with authorities and early plea of guilty – whether too much weight was placed on sexuality of the applicants and their involvement in Satanism – effect of serious violent offender declaration on length of sentence, particularly where operation of Part 9A Penalties and Sentences Act 1992 makes declaration mandatory

Corrective Services Act 1988 (Qld), s 166.
Penalties and Sentences Act 1992 (Qld), s 9(1)(e), s 9(4), s 9(4)(h), s 13, s 161B(3)

R v Byers CA No 430 of 1994, 28 February 1995, discussed
R v Bojovic CA No 4 of 1997, 9 May 1997, considered
R v Booth [1999] QCA 100; CA No 338 of 1998, 30 March 1999, considered
R v Campbell CA No 187 of 1994, 8 August 1994, discussed
R v Corrigan [1994] 2 QdR 415, applied
R v Daley [1999] QCA 332; CA No 201 of 1999, 18 August 1999, discussed
R v Doyle [1996] 1 QdR 407, discussed
R v Griffin & Dunkerton [1999] QCA 71; CA No 309, 318, 352 of 1998, 19 March 1999, considered
R v Hardie [1999] QCA 352; CA No 178 of 1999, 24 August 1999, discussed
R v Hewitt CA No 405 of 1993, 3 December 1993, discussed
R v Leishman CA No 418 of 1994, 9 December 1994, discussed
R v…

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 Bird and Schipper

Details

AGLC: R v Bird and Schipper [2000] QCA 94
Case: [2000] QCA 94
Decision Date: 24 March 2000

CaseChat Overview and Summary

The appellants, Bird and Schipper, were convicted of attempted murder and grievous bodily harm with intent. They appealed against their sentences, arguing that they were manifestly excessive. The Court of Appeal for the Criminal Division was tasked with deciding whether the sentences were indeed excessive and, if so, what the appropriate variation should be. Additionally, the court considered whether the sentencing judge had placed too much emphasis on the appellants' sexuality and their involvement in Satanism, and the impact of the serious violent offender declaration on the length of the sentence.

The court examined the nature and circumstances of the offences, the appellants' backgrounds, and the sentencing principles applicable to their case. The court found that the sentences imposed were indeed excessive. It noted the appellants' youth, lack of prior convictions, good character, and cooperation with authorities, as well as their early plea of guilty. The court also held that too much weight had been placed on the appellants' sexuality and involvement in Satanism, which were not relevant to the seriousness of the offences. Furthermore, the court considered the effect of the serious violent offender declaration on the length of the sentence, and concluded that the operation of Part 9A of the Penalties and Sentences Act 1992 made the declaration mandatory.

The Court of Appeal allowed the appeals and varied the sentences. In respect of the attempted murder conviction, the court reduced the sentence from 20 years imprisonment to 16 years imprisonment. In respect of the grievous bodily harm with intent conviction, the court reduced the sentence from 11 years imprisonment to 9 years imprisonment. The court confirmed the sentences in all other respects.

The court ordered that the sentences be varied as follows: in respect of CA No 318 of 1999, it is ordered that 16 years imprisonment be served instead of 20 years imprisonment, and in respect of CA No 325 of 1999, it is ordered that 9 years imprisonment be served instead of 11 years imprisonment. The sentences at first instance are otherwise confirmed.

Orders

Orders of the court

Applications for leave to appeal against sentence granted. Appeals allowed. The sentences are varied as follows: in respect of CA No 318 of 1999, it is ordered that 16 years imprisonment be served instead of 20 years imprisonment, and in respect of CA No 325 of 1999, it is ordered that 9 years imprisonment be served instead of 11 years imprisonment. The sentences at first instance are otherwise confirmed.

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 Bird and Schipper [2000] QCA 94

Most Recent Citation

R v WBD [2001] QCA 250

Cases citing this decision · 17 of 17 shown

R v Maksoud
[2016] QCA 115 Para 3

…] On that occasion, this Court’s decision in R v Bird and Schipper [35] was cited as authority. [32][2005] QCA 218. [33]At [21]. [34]At [12]. [35][2000] QCA 94; (2000) 110 A Crim R 394 at [33].…
R v Warne
[2015] QCA 9 Para 25

…to leniency on the account of youth.[23] [21]AB 54, AB 56 and AB 59. [22]AB 56, referring to R v Bird and Schipier [2000] 110 A Crim R 394 at [33]; [2000] QCA 94; R v Sharkey, ex parte Attorney-General (2009) 195 A Crim R 237; [2009] QCA 118 at [12] ( Sharkey ). [23]AB 59. The applicant’s submissions…
R v John
[2014] QCA 86

…002) 213 CLR 606; [2002] HCA 53, cited R v Bird and Schipper (2000) 110 A Crim R 394; [2000] QCA 94, cited R v Day , unreported, CCA No 364 of 1990, 26 March 1991, cited R v Hardie [1999] QCA 352, cited R v Lepp [1998] QCA 411, cited R v Rochester; ex parte Attorney-General (Qld) [2003] QCA 326, considered R v S…
R v Lacey
[2013] QCA 292 Para 1

…Act : see R v Lovell ;[23] R v Bird and Schipper ;[24] and s 9(4), especially s 9(4)(h) Penalties and Sentences Act . [23][1999] 2 Qd R 79, 83. [24][2000] QCA 94, [33]. After careful deliberation, I am persuaded that in view of the mitigating features and despite the serious nature of the present offending, the…
R v Gordon
[2011] QCA 326

…am, unreported, District Court at Southport, Wall DCJ, 29 April 2011, considered R v Bird and Schipper (2000) 110 A Crim R 394; [2000] QCA 94, cited R v Kynaston [2005] QCA 322, cited R v Lawley [2007] QCA 243, cited R v Lovell [1999] 2 Qd R 79; [1998] QCA 36, considered R v Loveridge [2011] QCA 32, cited R v Lu…
R v Hasanovic
[2010] QCA 337 Para 1

…years.[9] He supported this submission by reference particularly to Mikaele (supra) and to R v Bird & Schipper [10]. [9]Record book 1-33/20-40. [10][2000] QCA 94.…
R v Batchelor
[2009] QCA 150

…A 54, cited Malvaso v The Queen (1989) 168 CLR 227; [1989] HCA 58, cited R v Bird and Schipper (2000) 110 A Crim R 394; [2000] QCA 94, considered R v Cole [2004] QCA 109, cited R v Forster [2002] QCA 495, considered R v Jurcik [2001] QCA 390, cited R v Kerwin [2005] QCA 259, cited R v Lester [2004] QCA 34, cited…
R v Sharkey; ex parte
[2009] QCA 118

…HCA 46, considered R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, considered R v Bird and Schipper (2000) 110 A Crim R 394; [2000] QCA 94, followed R v Bradforth [2003] QCA 183, considered R v Elizalde [2006] QCA 330, considered R v Jenkins, Rollason and Brophy [2008] QCA 369, cited R v Johnson [2007] QCA…
R v Mikaele
[2008] QCA 261 Para 1

…yen [2006] QCA 542, where the offender was 23 and the declaration discretionary. To these may be added R v Bird and Schipper (2000) 110 A Crim R 394; [2000] QCA 94 where Schipper had just turned 18 and the declaration was discretionary, and R v Janz [2008] QCA 55, where he was 19 and the declaration automatic.…
R v Janz
[2008] QCA 55 Para 1

…as that the sentence was manifestly excessive by comparison with the sentence imposed on Schipper in R v Bird and Schipper (2000) 110 A Crim R 394; [2000] QCA 94.…
R v David
[2006] QCA 206

…excessive De Gruchy v The Queen (2002) 190 ALR 441; [2002] HCA 33, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v Bird & Schipper [2000] QCA 94; (2000) 110 A Crim R 394, cited R v Brown; R v Te Ao Kota [1991] CCA 155; CA No 116 of 1991, 6 August 1991, considered R v Butler [2006] QCA 51; CA N…
R v Eade
[2005] QCA 148

…on - whether sentence imposed was manifestly excessive – consideration of youth and lack of prior convictions R v Bird and Schipper [2000] QCA 94, CA No 318 of 1999, CA No 325 of 1999, 24 March 2000, considered R v Bojovic [1999] QCA 206, CA No 4 of 1999, 8 June 1999, considered R v Bryan; ex-parte A-G (Qld) [20…
R v Witchard
[2004] QCA 429

…ces Act 1992 (Qld), s 161 R v Bird and Schipper [2000] QCA 94; (2000) 110 A Crim R 394, followed R v Booth [1999] QCA 100; [2001] 1 Qd R 393, followed R v Byers ; ex parte A-G (Qld) [1995] QCA 44; CA No 430 of 1994 and CA No 436 of 1994, 28 February 1995, considered R v Crawford [1989] 2 Qd R 443, distinguished…
R v Chambers, Harrison and Fisher; ex parte
[2002] QCA 534

…v G [1999] QCA 477; CA No 303 of 1999, 16 November 1999, considered R v Melano [1995] 2 Qd R 186, followed R v Bird & Schipper [2000] QCA 94; CA No 318 of 1999 and CA No 325 of 1999, 24 March 2000, considered R v Wilde; ex parte A-G (Qld) [2002] QCA 501; CA No 238 of 2002, 15 November 2002, applied COUNSEL: A J…
R v Eveleigh
[2002] QCA 219

…t 2000 (Qld), s 134, s 135(2) Penalties and Sentences Act 1992 (Qld), s 3, s 9, s 13, s 157, s 161B R v Bird and Schipper [2000] QCA 94, considered R v Bojovic [2000] 2 Qd R 183, applied R v Booth [2001] 1 Qd R 393, considered R v B; ex parte Attorney-General [2000] QCA 110, considered R v Bui [2002] QCA 151, co…
R v Bates; R v Baker
[2002] QCA 174 Para 1

…of in sentencing.[4] [3] R v Taylor and Napatali; ex parte Attorney-General (Qld) [1999] QCA 323 at [15] per McPherson JA . [4] R v Bird and Schipper [2000] QCA 94 at [35] per McMurdo P and at [38] per Pincus JA.…
R v WBD
[2001] QCA 250

…92, s 105, s 107B, s 109, s 121(3)(a) AB v The Queen (1999) 198 CLR 111, considered R v Bird and Schipper [2000] QCA 94; CA 325 and 318 of 1999, 24 March 2000, referred to R v B , CA 472 of 1993, 30 March 1994, considered R v C , CA 436 of 1995, 13 February 1996, considered R v D [1996] 1 Qd R 363, cited R v Lov…

View all 17 citing cases →

Cases cited in this decision · 9 of 9 shown

R v S
[1999] QCA 311 Para 1

…the appropriate range. [2] Corrective Services Act 1988, s 166. [3]CA No 4 of 1997, 9 May 1997. [4][1999] QCA 238; CA No 13 of 1999, 22 June 1999. [5][1999] QCA 311; CA No 462 of 1998, 10 August 1999. [6][1999] QCA 100; CA No 338 of 1998, 30 March 1999 [7]CA No 72 of 1998, 26 May 1998. [8][1999] QCA 258; CA No 15…
R v Hardie
[1999] QCA 352 Para 1

…Act 1992. Hardie was 23 years of age, 5 years older than Bird, had a significant criminal history and did not have the benefit of a guilty plea. [15][1999] QCA 352; CA No 178 of 1999, 24 August 1999.…
R v Daley
[1999] QCA 332 Para 1

…This Court declined to interfere with the sentence. Schipper was younger than Daley, had no prior convictions and had committed a single offence. [20][1999] QCA 332; CA No 201 of 1999, 18 August 1999.…
R v Nguyen
[1999] QCA 258 Para 1

…1999. [5][1999] QCA 311; CA No 462 of 1998, 10 August 1999. [6][1999] QCA 100; CA No 338 of 1998, 30 March 1999 [7]CA No 72 of 1998, 26 May 1998. [8][1999] QCA 258; CA No 151 of 1999, 9 July 1999 [9][1999] QCA 71; CA No 309, 318, 352 of 1998, 19 March 1999.…
R v McCartney
[1999] QCA 238 Para 1

…ourt is whether the sentences imposed were outside the appropriate range. [2] Corrective Services Act 1988, s 166. [3]CA No 4 of 1997, 9 May 1997. [4][1999] QCA 238; CA No 13 of 1999, 22 June 1999. [5][1999] QCA 311; CA No 462 of 1998, 10 August 1999. [6][1999] QCA 100; CA No 338 of 1998, 30 March 1999 [7]CA No 7…
R v Booth
[1999] QCA 100 Para 1

…8, s 166. [3]CA No 4 of 1997, 9 May 1997. [4][1999] QCA 238; CA No 13 of 1999, 22 June 1999. [5][1999] QCA 311; CA No 462 of 1998, 10 August 1999. [6][1999] QCA 100; CA No 338 of 1998, 30 March 1999 [7]CA No 72 of 1998, 26 May 1998. [8][1999] QCA 258; CA No 151 of 1999, 9 July 1999 [9][1999] QCA 71; CA No 309, 31…
R v Griffin & Dunkerton
[1999] QCA 71 Para 1

…gust 1999. [6][1999] QCA 100; CA No 338 of 1998, 30 March 1999 [7]CA No 72 of 1998, 26 May 1998. [8][1999] QCA 258; CA No 151 of 1999, 9 July 1999 [9][1999] QCA 71; CA No 309, 318, 352 of 1998, 19 March 1999.…
Veen v The Queen (No 2)
[1988] HCA 14 Para 1

…y (in each case life imprisonment) as an available option[25]. [25] Ibbs v The Queen (1987) 163 CLR 447, 451-452; Veen v The Queen (No 2) (1987-1988) 164 CLR 465, 478.…
Ibbs v the Queen
[1987] HCA 46 Para 1

…prescribed offence. Such a situation opens up the maximum penalty (in each case life imprisonment) as an available option[25]. [25] Ibbs v The Queen (1987) 163 CLR 447, 451-452; Veen v The Queen (No 2) (1987-1988) 164 CLR 465, 478.…

Legislation cited in this decision · 3

Penalties and Sentences Act 1992 (Qld)
9(1)(e) 2 mentions (from Para 1)
Sentences Act 1992 (Qld)
9(1)(e) 2 mentions (from Para 1)
Corrective Services Act 1988 (Qld)
166 1 mention (from Para 1)

CITATION:	R v Bird and Schipper [2000] QCA 94
PARTIES:	R v BIRD, Sara Fotini SCHIPPER, Aleaha Jade (applicants)
FILE NO/S:	CA No 318 of 1999 CA No 325 of 1999 SC No 34 of 1999 SC No 35 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Sentence application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	24 March 2000
DELIVERED AT:	Brisbane
HEARING DATE:	25 February 2000
JUDGES:	McMurdo P, Pincus JA, Thomas JA Separate reasons for judgment of each member of the Court, McMurdo P and Pincus JA concurring as to the orders made; Thomas JA dissenting
ORDER:	Applications for leave to appeal against sentence granted. Appeals allowed. The sentences are varied as follows: in respect of CA No 318 of 1999, it is ordered that 16 years imprisonment be served instead of 20 years imprisonment, and in respect of CA No 325 of 1999, it is ordered that 9 years imprisonment be served instead of 11 years imprisonment. The sentences at first instance are otherwise confirmed.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – OTHER OFFENCES AGAINST THE PERSON – ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM – SENTENCING CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY – convictions for attempted murder and grievous bodily harm with intent to do grievous bodily harm - whether sentences imposed were manifestly excessive – consideration of youth, lack of prior convictions, prior good character, cooperation with authorities and early plea of guilty – whether too much weight was placed on sexuality of the applicants and their involvement in Satanism – effect of serious violent offender declaration on length of sentence, particularly where operation of Part 9A Penalties and Sentences Act 1992 makes declaration mandatory Corrective Services Act 1988 (Qld), s 166. Penalties and Sentences Act 1992 (Qld), s 9(1)(e), s 9(4), s 9(4)(h), s 13, s 161B(3) R v Byers CA No 430 of 1994, 28 February 1995, discussed R v Bojovic CA No 4 of 1997, 9 May 1997, considered R v Booth [1999] QCA 100; CA No 338 of 1998, 30 March 1999, considered R v Campbell CA No 187 of 1994, 8 August 1994, discussed R v Corrigan [1994] 2 QdR 415, applied R v Daley [1999] QCA 332; CA No 201 of 1999, 18 August 1999, discussed R v Doyle [1996] 1 QdR 407, discussed R v Griffin & Dunkerton [1999] QCA 71; CA No 309, 318, 352 of 1998, 19 March 1999, considered R v Hardie [1999] QCA 352; CA No 178 of 1999, 24 August 1999, discussed R v Hewitt CA No 405 of 1993, 3 December 1993, discussed R v Leishman CA No 418 of 1994, 9 December 1994, discussed R v…