R v Castel

[2020] QCA 91

SUPREME COURT OF QUEENSLAND

CITATION:

R v Castel [2020] QCA 91

PARTIES:

R
v
CASTEL, Katie Anne
(applicant)

FILE NO/S:

CA No 81 of 2019
SC No 377 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 19 March 2019 (Dalton J)

DELIVERED ON:

6 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2020

JUDGES:

Sofronoff P, Mullins JA and Boddice J

ORDERS:

1.   Application for leave to appeal against sentence granted.

2.   Appeal against sentence allowed.

3.   Sentence varied by ordering that the date the applicant is eligible for parole be fixed at 20 December 2020.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to manslaughter (domestic violence offence) – where the applicant was sentenced to nine years’ imprisonment with no eligibility for parole date fixed – where the applicant had no prior criminal history – where the applicant showed immediate remorse for her conduct – where the plea of guilty was early – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9

R v Callow[2017] QCA 304, considered
R v Hedlefs[2017] QCA 199, considered
R v Mills[2008] QCA 146, considered
R v O’Malley[2019] QCA 130, cited
R v O’Sullivan; Ex parte Attorney-General (Qld); R v Lee; Ex parte Attorney-General (Qld)[2019] QCA 300, cited

COUNSEL:

M J Power for the applicant
D Balic for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. SOFRONOFF P: Section 9(10A) of the Penalties and Sentences Act 1992 (Qld) makes it an aggravating factor that must be taken into account that an offence is a “domestic violence offence”. The section provides an exception to that requirement in cases in which, because of the existence of “exceptional circumstances”, it would not be reasonable to treat the domestic violence aspect of the offence as an aggravating factor. One example of such an exceptional circumstance is given in the Act: if the victim of the offence has previously committed “several acts of domestic violence against the offender”. “Domestic violence” is defined in the Domestic and Family Violence Protection Act 2012 (Qld) to mean, relevantly, behaviour by a person towards a person whom he or she is living in a “relevant relationship” that is emotionally or psychologically abusive. That definition is picked up by s 1 of the Criminal Code and, in turn, the latter definition is taken up by s 4 of the Penalties and Sentence Act 1992 (Qld).

2. The facts in this case include the matters referred to in paragraph [16] and the matters concerning the applicant’s psychological vulnerabilities referred to in paragraph [14] and [18] of Mullins JA’s reasons.

3. The issue of whether those facts engage the exception to s 9(10A) was not argued and it is therefore not desirable…