R v Chard; ex parte Attorney-General - [2004] QCA 372

SUPREME COURT OF QUEENSLAND

CITATION:

R v Chard; ex parte A-G (Qld) [2004] QCA 372

PARTIES:

R
v
CHARD, Peter
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 277 of 2004
SC No 19 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

28 September 2004

JUDGES:

de Jersey CJ, Williams JA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal allowed

2.   Set aside the sentences imposed at first instance and in lieu thereof:

(a)   Order that the respondent serve 12 months imprisonment being part of the suspended sentence imposed on 10 January 2000

(b)     On the manslaughter charge order that the respondent be imprisoned for seven years to be served cumulatively on that part of the suspended sentence ordered to be served

(c)   Declare that such sentences date from 3 February 2004

(d)     Declare that the respondent was in custody from 21 May 2002 to 22 October 2003, a period of 520 days, and declare that such time be imprisonment already served under the sentence hereby imposed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent convicted of manslaughter of infant – where offence committed during operational period of suspended sentence – where learned sentencing judge sentenced respondent to six years imprisonment for manslaughter, ordered that he serve 12 months of suspended term of imprisonment cumulative on that six years and then made recommendation that respondent be eligible to apply for post-prison community based release after serving 18 months – whether learned sentencing judge erred in the way he structured the sentence – whether suspended sentence should be imposed first and the manslaughter sentence then be made cumulative on it – whether this error made the sentence manifestly inadequate

Penalties and Sentences Act 1992 (Qld), s 147, s 148

R v Hall; ex parte A-G (Qld) [2002] QCA 125; CA No 32 of 2002, 5 April 2002, considered

COUNSEL:

A J Rafter SC for the appellant
P J Callaghan for the respondent

SOLICITORS:

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

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Williams JA. I agree with the orders proposed by his Honour, and with his reasons.

This was not a case of isolated cruelty borne of anger or frustration. It is the sustained character of the treatment meted out to the infant, that the respondent “contrived occasions to be alone with the child” during which he inflicted injury, and that the respondent endeavoured to conceal his responsibility by casting the blame onto others, which in my…

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.

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Details

Case: [2004] QCA 372
Decision Date: 8 October 2004

CaseChat Overview and Summary

The matter before the court involved an appeal by the Attorney-General against the sentence imposed on the respondent, who had been convicted of manslaughter. The respondent had committed the offence during the operational period of a suspended sentence, leading to a complex sentencing scenario. The original sentencing judge had imposed a six-year imprisonment term for the manslaughter charge, ordered the respondent to serve 12 months of the suspended term of imprisonment cumulatively on the six years, and recommended post-prison community-based release eligibility after 18 months. The Attorney-General contended that the sentencing judge erred in structuring the sentence by imposing the suspended sentence first and making the manslaughter sentence cumulative on it, rendering the sentence manifestly inadequate.

The court was required to determine whether the sentencing judge had erred in the way he structured the sentence. The primary issue was whether the suspended sentence should have been imposed first, with the manslaughter sentence being cumulative on it. Additionally, the court had to consider whether any such error rendered the sentence manifestly inadequate, justifying an appeal by the Attorney-General. The court examined the sentencing principles and whether the original sentence complied with the relevant statutory and judicial guidelines.

The court held that the sentencing judge had indeed erred in the way he structured the sentence. By imposing the suspended sentence first and making the manslaughter sentence cumulative on it, the judge deviated from the appropriate sentencing approach. The court found that this error made the sentence manifestly inadequate, as it did not appropriately reflect the seriousness of the offence or adequately address the respondent's culpability. Consequently, the court allowed the appeal, set aside the sentences imposed at first instance, and substituted new sentences. The court ordered that the respondent serve 12 months imprisonment as part of the suspended sentence and, on the manslaughter charge, be imprisoned for seven years cumulatively on that part of the suspended sentence. The court also declared the effective date of the new sentences and recognised the time the respondent had already served under the original sentence.

Orders

Orders of the court

1. Appeal allowed

2. Set aside the sentences imposed at first instance and in lieu thereof:

(a) Order that the respondent serve 12 months imprisonment being part of the suspended sentence imposed on 10 January 2000

(b) On the manslaughter charge order that the respondent be imprisoned for seven years to be served cumulatively on that part of the suspended sentence ordered to be served

(d) Declare that the respondent was in custody from 21 May 2002 to 22 October 2003, a period of 520 days, and declare that such time be imprisonment already served under the sentence hereby imposed

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.

CITATION:	R v Chard; ex parte A-G (Qld) [2004] QCA 372
PARTIES:	R v CHARD, Peter (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 277 of 2004 SC No 19 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	8 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	28 September 2004
JUDGES:	de Jersey CJ, Williams JA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal allowed 2. Set aside the sentences imposed at first instance and in lieu thereof: (a) Order that the respondent serve 12 months imprisonment being part of the suspended sentence imposed on 10 January 2000 (b) On the manslaughter charge order that the respondent be imprisoned for seven years to be served cumulatively on that part of the suspended sentence ordered to be served (c) Declare that such sentences date from 3 February 2004 (d) Declare that the respondent was in custody from 21 May 2002 to 22 October 2003, a period of 520 days, and declare that such time be imprisonment already served under the sentence hereby imposed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent convicted of manslaughter of infant – where offence committed during operational period of suspended sentence – where learned sentencing judge sentenced respondent to six years imprisonment for manslaughter, ordered that he serve 12 months of suspended term of imprisonment cumulative on that six years and then made recommendation that respondent be eligible to apply for post-prison community based release after serving 18 months – whether learned sentencing judge erred in the way he structured the sentence – whether suspended sentence should be imposed first and the manslaughter sentence then be made cumulative on it – whether this error made the sentence manifestly inadequate Penalties and Sentences Act 1992 (Qld), s 147, s 148 R v Hall; ex parte A-G (Qld) [2002] QCA 125; CA No 32 of 2002, 5 April 2002, considered
COUNSEL:	A J Rafter SC for the appellant P J Callaghan for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent