R v Cobb

Case [2016] QCA 333 13 December 2016

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Cobb [2016] QCA 333

PARTIES:

R
v
COBB, Glen Douglas
(applicant)

FILE NO/S:

CA No 207 of 2016
SC No 939 of 2015
SC No 997 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 5 July 2016

DELIVERED ON:

13 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

29 November 2016

JUDGES:

Holmes CJ and Philip McMurdo JA and Ann Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was charged with one count of attempted murder and, in the alternative, one count of causing grievous bodily harm with intent – where, prior to trial, the Crown rejected the applicant’s offer to plead guilty to the alternative charge – where upon arraignment the applicant pleaded not guilty to both offences but offered to plead guilty to causing grievous bodily harm – where the Crown did not accept that plea in discharge of the indictment – where, after trial, a jury convicted the applicant on the alternative charge of causing grievous bodily harm with intent – where the sentencing judge referred to “unguarded admissions” made by the applicant in the form of a Christmas card to the victim apologising for his actions and a letter to the judge – where the applicant was sentenced to eight years’ imprisonment with a serious violent offence declaration – where the applicant contends the sentence is manifestly excessive and the sentencing judge did not give sufficient weight to the mitigating factor of the applicant’s remorse – whether the sentence is manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 15

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, applied
R v Amery [2011] QCA 383, considered
R v Clark; ex parte Attorney-General [1999] QCA 438, cited
R v Kilic [2016] HCA 48, cited
R v Laing[2008] QCA 317, considered
R v Lyon [2006] QCA 146, considered
R v Marshall [1995] 1 Qd R 673; [1994] QCA 161, cited
R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, considered
R v Piper [2015] QCA 129, considered
R v Selby[2013] QCA 261, considered

COUNSEL:

S M Ryan QC for the applicant
D R Kinsella for the respondent

SOLICITORS:

Mulcahy Ryan Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES CJ: I agree with the reasons of Philip McMurdo JA and the order he proposes.
PHILIP McMURDO JA: In late 2014 the applicant struck his estranged wife in the head with a baseball bat, fracturing her skull and causing life‑threatening head and brain injuries. He and the complainant had separated although they…

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 Cobb

Details

AGLC: R v Cobb [2016] QCA 333
Case: [2016] QCA 333
Decision Date: 13 December 2016

CaseChat Overview and Summary

In the matter of R v Cobb, the applicant was convicted by a jury of causing grievous bodily harm with intent. The applicant had initially been charged with attempted murder and, in the alternative, causing grievous bodily harm with intent. The Crown rejected the applicant’s offer to plead guilty to the alternative charge prior to trial, and the applicant was sentenced to eight years' imprisonment with a serious violent offence declaration. The applicant contends that the sentence is manifestly excessive and that the sentencing judge did not give sufficient weight to the mitigating factor of the applicant’s remorse.

The primary legal issue for the court to determine was whether the sentence imposed was manifestly excessive. This involved assessing whether the sentence imposed was so disproportionate to the offence that it shocked the conscience of the court. The court also needed to determine if the sentencing judge appropriately considered the mitigating factor of the applicant’s remorse, as evidenced by the Christmas card to the victim and a letter to the judge. The applicant argued that the sentence was manifestly excessive because the sentencing judge did not adequately account for the mitigating factor of remorse.

The court considered the nature of the offence and the sentencing principles applicable. It noted that the offence involved a significant degree of violence but acknowledged the applicant’s remorse as a mitigating factor. However, the court found that the sentence was within the range of sentences that could be imposed for the offence, taking into account all the circumstances, including the seriousness of the offence and the need for deterrence. The court held that the sentencing judge had given appropriate weight to the mitigating factor of the applicant’s remorse and concluded that the sentence was not manifestly excessive. Therefore, the application for leave to appeal against sentence was refused.

The court ordered that the application for leave to appeal against sentence was to be refused. The sentence of eight years’ imprisonment with a serious violent offence declaration was upheld.

Orders

Orders of the court

Application for leave to appeal against sentence 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Cobb [2016] QCA 333

Most Recent Citation

R v Compton [2017] QCA 55

Cases citing this decision · 5 of 5 shown

R v Delander
[2019] QCA 69 Para 12

…discretionary judgement of the sentencing judge could be properly exercised. It is not a range for which upper and lower limits are established. [13][2016] QCA 333 at [30]-[31], referring to Barbaro v The Queen (2014) 253 CLR 58 at [27], [28] and [41].…
R v Dean; R v Selmes; R v Phillips
[2018] QCA 124 Para 5

…to an offence of doing grievous bodily harm simpliciter at the commencement of the trial. He was ultimately convicted of the alternative charge. [115][2016] QCA 333 at [11].…
R v Gatti
[2018] QCA 98 Para 1

…wo years and a declaration of the presentence custody as time served under the sentence (resulting in an eligibility date of 28 May 2018). [1][2016] QCA 333. [2][2010] QCA 266. [3][2011] QCA 383. [4][2015] QCA 129. [5][2008] QCA 317. [6][2006] QCA 25. [7][2008] QCA 200 at [63] and [64]. Consideration…
R v Utley
[2017] QCA 94 Para 31

…ts of a sentence which can be imposed in any particular case. They also do not establish a range of sentences for the particular case in question. [5][2016] QCA 333.…
R v Compton
[2017] QCA 55 Para 3

…tcome. It does not affect the authority of Barbaro upon the proper use to be made by courts of comparable sentences.”[23] (footnotes omitted) [21][2016] QCA 333. [22] R v Cobb [2016] QCA 333 , per Philip McMurdo JA (with whom Holmes CJ and Ann Lyons J agreed) at [31]. [23] R v Cobb [2016] QCA 333 , per Philip McM…

View all 5 citing cases →

Cases cited in this decision · 14 of 14 shown

R v Kilic
[2016] HCA 48 Para 7

…case and must be considered. But they are indicative and not determinative. [19](2014) 253 CLR 58, 74 [41]; [2014] HCA 2; see also R v Kilic [2016] HCA 48 at [21]-[24].…
R v Piper
[2015] QCA 129 Para 17

…ce had been called in his trial, he was re‑arraigned and pleaded guilty to that alternative count which was accepted by the prosecution. [5][2015] QCA 129.…
Barbaro v The Queen
[2014] HCA 2

…applicant’s remorse – whether the sentence is manifestly excessive Penalties and Sentences Act 1992 (Qld), s 15 Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, applied R v Amery [2011] QCA 383, considered R v Clark; ex parte Attorney-General [1999] QCA 438, cited R v Kilic [2016] HCA 48, cited R v Laing [2008] QCA 317,…
R v Selby
[2013] QCA 261 Para 19

…en imprisoned. Although the sentencing judge accepted that there was some remorse, the offender had argued a defence of self-defence at his trial. [7][2013] QCA 261.…
R v Amery
[2011] QCA 383 Para 20

…pects very similar to the present one, in that case a parole eligibility date was fixed largely because of the applicant’s plea of guilty. [8][2011] QCA 383. [9][2011] QCA 383 at [27].…
R v Laing
[2008] QCA 317 Para 21

…th whom Fraser JA and Jones J agreed) said that the sentence imposed “was within the appropriate range, and was distinctly moderate.”[11] [10][2008] QCA 317. [11][2008] QCA 317 at [48].…
R v McDougall and Collas
[2006] QCA 365 Para 1

…ch as a comparable offence but for its statements of principle for the making of a serious violent offence declaration. [15][2007] 2 Qd R 87; [2006] QCA 365. [16][2007] 2 Qd R 87, 96 [19]. [17][2007] 2 Qd R 87, 97 [23]. Consideration of the applicant’s argument…
R v Lyon
[2006] QCA 146 Para 11

…circumstance in that the applicant had thereby “sought to assist the course of justice”. [1][1999] QCA 438 at [41]. [2][2006] QCA 146. [3][1995] 1 Qd R 673, 673. [4][2003] QCA 367.…
R v Wiggins
[2003] QCA 367 Para 11

…y “sought to assist the course of justice”. [1][1999] QCA 438 at [41]. [2][2006] QCA 146. [3][1995] 1 Qd R 673, 673. [4][2003] QCA 367.…
R v Clark; ex parte A-G
[1999] QCA 438 Para 11

…this offence was a relevant circumstance in that the applicant had thereby “sought to assist the course of justice”. [1][1999] QCA 438 at [41]. [2][2006] QCA 146. [3][1995] 1 Qd R 673, 673. [4][2003] QCA 367.…
R v Daley
[1999] QCA 332 Para 23

…at it was “almost impossible to see how the learned Judge could have avoided making a declaration that this was a serious violent offence.” [14][1999] QCA 332.…
R v Marshall
[1994] QCA 161

…cited R v Laing [2008] QCA 317, considered R v Lyon [2006] QCA 146, considered R v Marshall [1995] 1 Qd R 673; [1994] QCA 161, cited R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, considered R v Piper [2015] QCA 129, considered R v Selby [2013] QCA 261, considered COUNSEL: S M Ryan QC for the applica…
House v R
[1936] HCA 40 Para 10

…that there has been an error in the exercise of the sentencing discretion.[22] This sentence is not manifestly excessive. [22] House v The King (1936) 55 CLR 499, 505, cited in Barbaro (2014) 253 CLR 58, 70 [26]. Conclusion and order…
House v The King
63 WN 176 Para 10

…ould be inferred that there has been an error in the exercise of the sentencing discretion.[22] This sentence is not manifestly excessive. [22] House v The King (1936) 55 CLR 499, 505, cited in Barbaro (2014) 253 CLR 58, 70 [26]. Conclusion and order…

Legislation cited in this decision · 2

Penalties and Sentences Act 1992 (Qld)
15 2 mentions (from Para 11)
Domestic and Family Violence Protection Act 1989 (Qld)
1 mention (from Para 22)

CITATION:	R v Cobb [2016] QCA 333
PARTIES:	R v COBB, Glen Douglas (applicant)
FILE NO/S:	CA No 207 of 2016 SC No 939 of 2015 SC No 997 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 5 July 2016
DELIVERED ON:	13 December 2016
DELIVERED AT:	Brisbane
HEARING DATE:	29 November 2016
JUDGES:	Holmes CJ and Philip McMurdo JA and Ann Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was charged with one count of attempted murder and, in the alternative, one count of causing grievous bodily harm with intent – where, prior to trial, the Crown rejected the applicant’s offer to plead guilty to the alternative charge – where upon arraignment the applicant pleaded not guilty to both offences but offered to plead guilty to causing grievous bodily harm – where the Crown did not accept that plea in discharge of the indictment – where, after trial, a jury convicted the applicant on the alternative charge of causing grievous bodily harm with intent – where the sentencing judge referred to “unguarded admissions” made by the applicant in the form of a Christmas card to the victim apologising for his actions and a letter to the judge – where the applicant was sentenced to eight years’ imprisonment with a serious violent offence declaration – where the applicant contends the sentence is manifestly excessive and the sentencing judge did not give sufficient weight to the mitigating factor of the applicant’s remorse – whether the sentence is manifestly excessive Penalties and Sentences Act 1992 (Qld), s 15 Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, applied R v Amery [2011] QCA 383, considered R v Clark; ex parte Attorney-General [1999] QCA 438, cited R v Kilic [2016] HCA 48, cited R v Laing[2008] QCA 317, considered R v Lyon [2006] QCA 146, considered R v Marshall [1995] 1 Qd R 673; [1994] QCA 161, cited R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, considered R v Piper [2015] QCA 129, considered R v Selby[2013] QCA 261, considered
COUNSEL:	S M Ryan QC for the applicant D R Kinsella for the respondent
SOLICITORS:	Mulcahy Ryan Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent