R v Cowie

Case [2005] QCA 223


SUPREME COURT OF QUEENSLAND

CITATION:

R v Cowie [2005] QCA 223

PARTIES:

R
v
COWIE, Michael Alan
(applicant)

FILE NO/S:

CA No 42 of 2005
SC No 576 of 2004
SC No 78 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

10 June 2005

JUDGES:

McPherson and Keane JJA and McMurdo J
Judgment of the Court

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

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 REFUSED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - GENERALLY - where applicant was convicted after trial of offences involving supply of a dangerous drug, kidnapping, receiving stolen goods and torture - where applicant had also pleaded guilty to stealing and two summary offences - where majority of offences related to the kidnap and torture of an 18 year old New Zealand man who sustained physical and mental injuries - where applicant had extensive criminal record and was a habitual drug user - where two co-offenders who had pleaded guilty received sentences of eight years imprisonment with serious violent offender declarations - where the applicant was sentenced to 12 years imprisonment with a serious violent offender declaration - where applicant submitted that appropriate sentencing range was between 10 and 12 years imprisonment and that the making of a serious violent offender declaration meant that any sentence should be at the lower end of that range - where making of serious violent offender declaration was mandatory under s 161B Penalties and Sentences Act 1992 (Qld) - whether learned trial judge had taken the making of the serious violent offender declaration into account when imposing sentence - whether the mandatory obligation to make a serious violent offender declaration must be reflected by imposing a term of imprisonment at the lower end of the sentencing range

Penalties and Sentences Act 1992 (Qld), s 161A, s 161B

R v B [2000] QCA 110; (2000) 110 A Crim R 499, considered

R v Bojovic [1999] QCA 206; [2000] 2 Qd R 183, considered

R v Booth [1999] QCA 100; [2001] 1 Qd R 393, cited

R v Crossley [1999] QCA 223; (1999) 106 A Crim R 80, cited

R v Eveleigh [2002] QCA 219; [2003] 1 Qd R 398, considered

R v Herford [2001] QCA 177; (2001) 119 A Crim R 546, applied

R v Shillingsworth [2001] QCA 172; [2002] 1 Qd R 527, applied

R v Rankmore;  ex parte A-G (Qld) [2002] QCA 492; CA No 223, CA No 285 and CA No 288 of 2002, 15 November 2002, cited

R v R & S;  ex parte Attorney-General [1999] QCA 181; [2000] 2 Qd R 413, cited

R v Roelandts [2002] QCA 254; (2002) 131 A Crim R…

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Details
AGLC
R v Cowie [2005] QCA 223
Case
[2005] QCA 223
Decision Date

CaseChat Overview and Summary

The appellant, Cowie, was convicted of various serious offences including the supply of a dangerous drug, kidnapping, receiving stolen goods, and torture, following a trial. He had also pleaded guilty to stealing and two summary offences. The appellant was sentenced to 12 years imprisonment with a serious violent offender declaration. Cowie sought leave to appeal against his sentence, contending that the trial judge had failed to take into account the mandatory making of a serious violent offender declaration when imposing sentence. The legal issue before the court was whether the trial judge had correctly considered the mandatory nature of the serious violent offender declaration when determining the appropriate sentence.

The court considered that the trial judge was bound to make the declaration, as mandated by section 161B of the Penalties and Sentences Act 1992 (Qld). However, the court held that the mandatory nature of the declaration did not require the imposition of a term of imprisonment at the lower end of the sentencing range. The court found that the trial judge had correctly considered the seriousness of the offences and the appellant's criminal history, and had appropriately exercised discretion in determining the sentence. The court also noted that the appellant had a significant criminal history and was a habitual drug user, which warranted a severe sentence.

In light of the above, the court dismissed the application for leave to appeal against the sentence. The court found that there were no grounds for interference with the sentence imposed by the trial judge. The court considered that the sentence was within the appropriate range and reflected the gravity of the offences committed. The court held that the appellant's argument that the making of a serious violent offender declaration should have resulted in a sentence at the lower end of the range was not supported by the authorities. The court concluded that the trial judge had exercised his discretion correctly and that the appeal against sentence should be dismissed.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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