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R v Callow

R v Callow

Case [2017] QCA 304 15 December 2017

Appeal

Sentencing

Manifestly Excessive Sentence

Remorse

Rehabilitation

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Callow [2017] QCA 304

PARTIES:

R
v
CALLOW, James David Darren
(applicant)

FILE NO/S:

CA No 146 of 2017
SC No 14 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Toowoomba – Date of Sentence: 9 June 2017 (Applegarth J)

DELIVERED ON:

Order delivered ex tempore on 22 November 2017
Reasons delivered 15 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2017

JUDGES:

Sofronoff P and Morrison and Philippides JJA

ORDER:

Order delivered 22 November 2017:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was convicted, on his own plea of guilty, of two counts of unlawful assault (domestic violence offences) and one count of manslaughter and three summary offences – where the applicant was sentenced to 18 months’ imprisonment on each of the assault charges and eight and a-half years’ imprisonment for the manslaughter – where parole eligibility was set after serving three years – where the offending involved a prolonged assault against the applicant’s ex-partner and two and a-half year old daughter – where the deceased was a stranger who attempted to intervene and stop the assaults against ex-partner and child – where in the course of his attempts to help, the deceased was struck a number of times before hitting his head on the road and dying one day later – where the applicant contends that the sentence is manifestly excessive when one has regard to comparative cases – where the applicant contends that the lack of a criminal history, the applicant’s remorse, poor psychological health, deprived upbringing and signs of rehabilitation warrant a lesser sentence – where the learned sentencing judge had regard to those factors, and also had the assistance of CCTV footage of the offending – where there are both similarities and differences between the current and comparative cases – whether the sentence is so different to those in comparative cases that there must have been a misapplication of principle – whether the sentence is manifestly excessive

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited
Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) (2017) 91 ALJR 1063; [2017] HCA 41, followed
R v Cavazza, unreported, Court of Criminal Appeal, Qld, CA No 404 of 1986, 3 April 1987, cited
R v Dwyer[2008] QCA 117, distinguished
R v Major, unreported, Lyons J, SC No 357 of 2011, 19 September 2013, cited
R v Matthews[2007] QCA 144, distinguished
R v McCusker [2015] QCA 179, distinguished
R v Simeon [2000] QCA 470, distinguished
R v Skondin [2015] QCA 138, distinguished
R v Tientjes; ex parte Attorney General (Qld) [1999] QCA 480, distinguished
R v Tout[2012] QCA 296, followed

COUNSEL:

C Reid for the applicant
M B…

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 Callow

Details

AGLC: R v Callow [2017] QCA 304
Case: [2017] QCA 304
Decision Date: 15 December 2017

CaseChat Overview and Summary

In the matter of R v Callow, the applicant appealed against his sentence, arguing that it was manifestly excessive. Callow was convicted of two counts of unlawful assault, one count of manslaughter, and three summary offences. He was sentenced to 18 months' imprisonment for each assault charge and eight and a half years for the manslaughter, with parole eligibility set after serving three years. The appeal centred around the severity of the sentence, given the circumstances of the offence, which involved a prolonged assault against Callow's ex-partner and their two and a half year old daughter, with the deceased being a stranger who attempted to intervene and was fatally injured in the process.

The legal issues in this case included whether the sentence was manifestly excessive, and whether there was a misapplication of principle or the sentence was unreasonable or plainly unjust. The court had to consider the factors the sentencing judge took into account, including CCTV footage of the offending, Callow's lack of a criminal history, his remorse, poor psychological health, deprived upbringing, and signs of rehabilitation. The court also had to compare the sentence with those in similar cases to determine whether the sentence was markedly different.

The court found that the sentence was not manifestly excessive, as it was not markedly different from sentences in other cases, and even if it was, that would not be enough to establish that there must have been a misapplication of principle, or that the sentence was unreasonable or plainly unjust. The court was unpersuaded that the sentence was manifestly excessive, and refused the application for leave to appeal. The judges agreed with the reasons provided by Morrison JA, and the order was delivered on 22 November 2017, refusing the application for leave to appeal against sentence.

Orders

Orders of the court

Order delivered 22 November 2017:

The application for leave to appeal against sentence is refused.

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

McCusker, Major and Cavazza are too remote from the present case to be of any utility. Tientjes was an Attorney-General’s appeal, involving a case where there was only one victim, and an offender not on bail. Given the constrained approach on a successful Attorney-General’s appeal against inadequacy, the case is of little utility.Conclusion For the reasons above I am quite unable to conclude that the sentence imposed upon Mr Callow was manifestly excessive. It has not been established that the sentence is markedly different from sentences in other cases, and in any event that would not be enough.[30] It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is unreasonable or plainly unjust. I am unpersuaded that is so.[30]R v Tout [2012] QCA 296 at [8]. For these reasons I joined in refusing the application for leave to appeal. PHILIPPIDES JA: I also agree with the reasons of Morrison JA.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

R v Callow [2017] QCA 304

Most Recent Citation

R v Heke [2019] QCA 93

Cases Citing This Decision

R v Moy [2024] QCA 4
Citation 1 (Para 2)

…instance or on this application: R v Simeon [2000] QCA 470; R v Mooka [2007] QCA 36; R v Dwyer [2008] QCA 117; R v Skondin [2015] QCA 138; R v Callow [2017] QCA 304; R v Granz-Glenn [2023] QCA 157. R v Simeon…
R v Powell [2022] QCA 164
Citation 2 (Para 18)

…heir written submissions, both the Crown and the applicant’s counsel referred Crow J to two comparatives, R v Skondin [2015] QCA 138 and R v Callow [2017] QCA 304. By reference to those comparatives, the Crown submitted that a head sentence for the manslaughter count in the range of eight to nine years was approp…
CFT Investments 1 LLC v Commonwealth Director of Public Prosecutions [2022] QDC 145
Citation 3 (Para 14)

…In R v Callow [2017] QCA 304 at [36], Morrison JA reinforced what Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen (2005) 228 CLR 357 at 371: Furthermore, there is no one single correct sentence. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant wi…
GSB v Commissioner of Police [2021] QDC 196
Citation 4 (Para 7)

…not support a single correct decision. The sentencing discretion involves an allowance of flexibility in the exercise of that discretion.” [2][2017] QCA 304, at [36]. [3](2005) 228 CLR 357 at 371. [4][2017] QCA 143…
Ruhland v Commissioner of Police [2020] QDC 265
Citation 5

…rown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, cited Norbis v Norbis (1986) 161 CLR 513, cited R v Callow [2017] QCA 304, cited Markarian v The Queen (2005) 228 CLR 357, cited R v Frith [2017] QCA 143, cited De Simoni v The Queen (1981) 147 CLR 383, cited The Queen v D [1996] 1 Qd R 363, cited…
Neale v Commissioner of Police [2020] QDC 233
Citation 6 (Para 4)

…as is consonant with consistency of approach and as accords with the relevant statutory regime.” [1] R v Lawley [2007] QCA 243 at [18]. [2] [2017] QCA 304 at [36]. [3] (2005) 228 CLR 357 at 371 [27]. Factual basis of sentence…
R v Castel [2020] QCA 91
Citation 7 (Para 31)

…Although R v Callow [2017] QCA 304 arose out of domestic violence, the victim of the unlawful killing was a 65 year old bystander who intervened in an attempt to stop Mr Callow from trying to remove his young child from his former partner. Mr Callow’s current partner also tried to stop his actions against his for…
Senesie Bull v The Commissioner of Police [2020] QDC 35
Citation 8

…s v Norbis (1986) 161 CLR 513, applied Queensland Police Service v Gregory [2010] QDC 388, cited R v Callow [2017] QCA 304, applied R v Castle; Ex parte Attorney-General (Qld) [2014] QCA 276, applied R v Dance [2009] QCA 371, cited R v Frith [2017] QCA 143, applied R v Ross [2000] QCA 49, cited R v Schenk; Ex par…
Magill v The Commissioner of Police [2020] QDC 8
Citation 9

…Donald v Queensland Police Service [2017] QCA 255, applied R v Brown; ex parte Attorney-General [1994] 2 Qd R 182, applied R v Callow [2017] QCA 304, applied R v Castle ; Ex parte Attorney-General (Qld) [2014] QCA 276, applied R v Cay, Gersch and Schell; ex parte Attorney General (Qld) [2005] QCA 467, applied R v…
R v Heke [2019] QCA 93
Citation 10

…1992 (Qld), s 9, s 161A, s 162 Safe Night Out Legislation Amendment Act 2014 (Qld) R v Ali [2018] QCA 212, cited R v Callow [2017] QCA 304, cited R v Dwyer [2008] QCA 117, cited R v Heather (unreported, 1178/2017, Supreme Court at Brisbane, 8 March 2018) R v Mayot (unreported, 826/16, Supreme Court at Brisbane, 6…
Reid v Commissioner of Police [2018] QDC 83
Citation 11

…cited Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, cited Norbis v Norbis (1986) 161 CLR 513, cited R v Callow [2017] QCA 304, cited Markarian v The Queen (2005) 228 CLR 357, cited R v Frith [2017] QCA 143, cited R v McGrath [2006] 2 Qd R 58, cited R v Conn; Ex parte Attorney-General…
Woolworths Limited v Stacey Maree Spletter [2018] QDC 13
Citation 12

…[4] [2017] QCA 304.…

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Cases Cited

Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41
Citation 1

…ueen (2014) 253 CLR 58; [2014] HCA 2, cited Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) (2017) 91 ALJR 1063; [2017] HCA 41, followed R v Cavazza , unreported, Court of Criminal Appeal, Qld, CA No 404 of 1986, 3 April 1987, cited R v Dwyer [2008] QCA 117, distinguished R v Major , unreported, Lyons…
R v McCusker [2015] QCA 179
Citation 2 (Para 29)

…ed that the sentences on the two unlawful assault counts were manifestly excessive. [15][2015] QCA 138. [16][2000] QCA 470. [17][1999] QCA 480. [18][2015] QCA 179. [19]Unreported, CA No. 404 of 1986. [20]Unreported, Lyons J, 19 September 2013.…
R v Skondin [2015] QCA 138
Citation 3 (Para 29)

…fter serving one third, or 28 months. No argument was advanced that the sentences on the two unlawful assault counts were manifestly excessive. [15][2015] QCA 138. [16][2000] QCA 470. [17][1999] QCA 480. [18][2015] QCA 179. [19]Unreported, CA No. 404 of 1986. [20]Unreported, Lyons J, 19 September 2013.…
Barbaro v The Queen [2014] HCA 2
Citation 4

…lication of principle – whether the sentence is manifestly excessive Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) (2017) 91 ALJR 1063; [2017] HCA 41, followed R v Cavazza , unreported, Court of Criminal Appeal, Qld, CA No 404 of 1986,…
R v Tout [2012] QCA 296
Citation 5 (Para 2)

…isapplication of principle, or that the sentence is ‘unreasonable or plainly unjust’: Hili v The Queen (2010) 242 CLR 520 at [58], [59].” [23][2012] QCA 296 at [8].…
Hili v The Queen [2010] HCA 45
Citation 6 (Para 2)

…nce is such that there must have been a misapplication of principle, or that the sentence is ‘unreasonable or plainly unjust’: Hili v The Queen (2010) 242 CLR 520 at [58], [59].” [23][2012] QCA 296 at [8].…
R v Challacombe [2009] QCA 314
Citation 7 (Para 11)

…e applicant refers involved factual differences leading to sentences which reflect those differences within a broad sentencing discretion.” [29][2009] QCA 314, at [13].…
R v Dwyer [2008] QCA 117
Citation 8 (Para 1)

…Additional cases relied upon by the Crown were R v Matthews [21] and R v Dwyer .[22] [21][2007] QCA 144. [22][2008] QCA 117. Discussion…
R v Matthews [2007] QCA 144
Citation 9 (Para 1)

…Additional cases relied upon by the Crown were R v Matthews [21] and R v Dwyer .[22] [21][2007] QCA 144. [22][2008] QCA 117. Discussion…
R v Mooka [2007] QCA 36
Citation 10 (Para 3)

…s discretion is comparatively wide.[25] [24] Markarian v The Queen (2005) 228 CLR 357 at 371 [27], per Kiefel CJ, Bell and Keane JJ. [25] R v Mooka [2007] QCA 36, per de Jersey CJ, Williams JA concurring.…
Markarian v The Queen [2005] HCA 25
Citation 11 (Para 3)

…manslaughter, because the circumstances are infinitely wide the sentencing judge’s discretion is comparatively wide.[25] [24] Markarian v The Queen (2005) 228 CLR 357 at 371 [27], per Kiefel CJ, Bell and Keane JJ. [25] R v Mooka [2007] QCA 36, per de Jersey CJ, Williams JA concurring.…
R v Simeon [2000] QCA 470
Citation 12 (Para 29)

…rd, or 28 months. No argument was advanced that the sentences on the two unlawful assault counts were manifestly excessive. [15][2015] QCA 138. [16][2000] QCA 470. [17][1999] QCA 480. [18][2015] QCA 179. [19]Unreported, CA No. 404 of 1986. [20]Unreported, Lyons J, 19 September 2013.…
R v Tientjes; ex parte A-G (Qld) [1999] QCA 480
Citation 13 (Para 29)

…argument was advanced that the sentences on the two unlawful assault counts were manifestly excessive. [15][2015] QCA 138. [16][2000] QCA 470. [17][1999] QCA 480. [18][2015] QCA 179. [19]Unreported, CA No. 404 of 1986. [20]Unreported, Lyons J, 19 September 2013.…

Legislation Cited

No legislation cited in this judgment.

CITATION:	R v Callow [2017] QCA 304
PARTIES:	R v CALLOW, James David Darren (applicant)
FILE NO/S:	CA No 146 of 2017 SC No 14 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Toowoomba – Date of Sentence: 9 June 2017 (Applegarth J)
DELIVERED ON:	Order delivered ex tempore on 22 November 2017 Reasons delivered 15 December 2017
DELIVERED AT:	Brisbane
HEARING DATE:	22 November 2017
JUDGES:	Sofronoff P and Morrison and Philippides JJA
ORDER:	Order delivered 22 November 2017: The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was convicted, on his own plea of guilty, of two counts of unlawful assault (domestic violence offences) and one count of manslaughter and three summary offences – where the applicant was sentenced to 18 months’ imprisonment on each of the assault charges and eight and a-half years’ imprisonment for the manslaughter – where parole eligibility was set after serving three years – where the offending involved a prolonged assault against the applicant’s ex-partner and two and a-half year old daughter – where the deceased was a stranger who attempted to intervene and stop the assaults against ex-partner and child – where in the course of his attempts to help, the deceased was struck a number of times before hitting his head on the road and dying one day later – where the applicant contends that the sentence is manifestly excessive when one has regard to comparative cases – where the applicant contends that the lack of a criminal history, the applicant’s remorse, poor psychological health, deprived upbringing and signs of rehabilitation warrant a lesser sentence – where the learned sentencing judge had regard to those factors, and also had the assistance of CCTV footage of the offending – where there are both similarities and differences between the current and comparative cases – whether the sentence is so different to those in comparative cases that there must have been a misapplication of principle – whether the sentence is manifestly excessive Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) (2017) 91 ALJR 1063; [2017] HCA 41, followed R v Cavazza, unreported, Court of Criminal Appeal, Qld, CA No 404 of 1986, 3 April 1987, cited R v Dwyer[2008] QCA 117, distinguished R v Major, unreported, Lyons J, SC No 357 of 2011, 19 September 2013, cited R v Matthews[2007] QCA 144, distinguished R v McCusker [2015] QCA 179, distinguished R v Simeon [2000] QCA 470, distinguished R v Skondin [2015] QCA 138, distinguished R v Tientjes; ex parte Attorney General (Qld) [1999] QCA 480, distinguished R v Tout[2012] QCA 296, followed
COUNSEL:	C Reid for the applicant M B…