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R v Cowie

R v Cowie

Case [2005] QCA 223 24 June 2005

Appeal

Sentencing

Serious Violent Offender Declaration

Criminal Liability

Criminal Law

Type to search within this case.

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…

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 Cowie

Details

AGLC: R v Cowie [2005] QCA 223
Case: [2005] QCA 223
Decision Date: 24 June 2005

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

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.

Citations

AGLC Citation

R v Cowie [2005] QCA 223

Most Recent Citation

R v HAA [2006] QCA 55

Cases citing this decision · 19 of 19 shown

R v Free; Ex parte
[2020] QCA 58

…oubted R v Collins [2000] 1 Qd R 45; [1998] QCA 280, cited R v Cowie [2005] 2 Qd R 533; [2005] QCA 223, cited R v D [2003] QCA 88, considered R v DeSalvo (2002) 127 A Crim R 229; [2002] QCA 63, cited R v Eveleigh [2003] 1 Qd R 398; [2002] QCA 219, cited R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, c…
R v Carrall
[2018] QCA 355

…110 , cited R v Cooney; Ex parte Attorney-General (Qld) [2008] QCA 414 , cited R v Cowie [2005] 2 Qd R 533; [2005] QCA 223 , cited R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223 , cited R v Feakes [2009] QCA 376 , cited R v Herford (2001) 119 A Crim R 546; [2001] QCA 177 , cited R v Johnson [2014] QCA 79 , c…
R v Dang
[2018] QCA 331 Para 13

…nificant differences between the relative criminality of each of the co-offenders in that case.” [38][2010] QCA 273. [39][2005] 2 Qd R 533; [2005] QCA 223. [40][2008] QCA 261 at [36].…
R v Spies
[2018] QCA 36

…2010) 242 CLR 520; [2010] HCA 45, cited Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, followed R v Cowie [2005] 2 Qd R 533; [2005] QCA 223, discussed R v Heiser & Cook; Ex parte Attorney-General (Qld) [1997] QCA 14, discussed R v Nagy [2004] 1 Qd R 63; [2003] QCA 175 , considered R v Roelandts (2002) 131…
R v Galleghan
[2017] QCA 186

…In R v Cowie [2005] 2 Qd R 533; [2005] QCA 223, the sentencing judge imposed a sentence of 12 years. This was not disturbed on appeal. The court was prepared to act upon the basis that the appropriate range was between 10 and 12 years.…
Price v Queensland Police Service
[2017] QDC 31

…2005) 228 CLR 357; [2005] HCA 25, considered R v Bojovic [2002] 2 Qd R 183; [1999] QCA 206, considered R v Cowie [2005] 2 Qd R 533; [2005] QCA 223, considered R v Hammond [1997] 2 Qd R 195; [1996] QCA 508, cited R v McDougall & Collas [2007] 2 Qd R 87; [2006] QCA 365, considered R v Ungvari [2010] QCA 134; cited…
R v Maksoud
[2016] QCA 115 Para 20

…e a serious violent offence declaration must be made, there is no “balancing exercise” as arises where there is a discretion to make one.[58] [57][2005] QCA 223; [2005] 2 Qd R 533 per McPherson, Keane JJA and McMurdo P. [58]At [15].…
R v Goulding; R v Goulding, Peters, Potts and Knox; Ex parte
[2016] QCA 65 Para 6

…entenced to eight years’ imprisonment with serious violent offence declarations. Neither had a significant criminal history for violence.[52] [51][2005] QCA 223; [2005] 2 Qd R 533. [52]At [11].…
R v Kapitano
[2012] QCA 288 Para 14

…order to fulfil the purpose of sentencing which is prescribed by s 9(1), consistently with what was said in Shillingsworth and Herford .” [16][2005] QCA 223 at [19].…
R v Lacey & Lacey
[2011] QCA 386

…nguished R v HAB [2006] QCA 80, distinguished R v Jessen [1997] 2 Qd R 213; [1996] QCA 449, cited R v Kennedy and Watkins; ex parte A-G of Queensland [2002] QCA 26, distinguished R v Lacey [2009] QCA 275, cited R v Mah [2004] QCA 198, distinguished R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381, cited R v Mar…
R v Melling
[2010] QCA 307

…R v Baynes [1989] 2 Qd R 431, cited R v Cowie [2005] 2 Qd R 533; [2005] QCA 223, considered R v Mah [2004] QCA 198, considered R v Serratore (1999) 48 NSWLR 101; [1999] NSWCCA 377, applied, R v Sherrington & Kuchler [2001] QCA 105, cited The Queen v Storey (1978) 140 CLR 364; [1978] HCA 39, cited R v Taufahema (…
R v Meerdink
[2010] QCA 273

…[2005] HCA 25, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, applied R v Cowie [2005] 2 Qd R 533; [2005] QCA 223, applied R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223, considered R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, considered R v Mikaele [2008] QCA 261, considered…
R v Lacey and Lacey
[2010] QDC 344 Para 7

…Mr Byrne SC also referred to R v Cowie [2005] QCA 223. The applicant in that case was convicted after a trial of supplying a dangerous drug, torture, kidnapping and receiving. He was sentenced to 12 years imprisonment for torture and lesser concurrent sentences for the other offences. The victim was an 18 year ol…
R v Richardson
[2010] QCA 216 Para 1

…igh [2003] 1 Qd R 398; [2002] QCA 219; R v Bidmade [2003] QCA 422; R v A [2003] QCA 538; R v Orchard [2005] QCA 141; R v Cowie [2005] 2 Qd R 533; [2005] QCA 223; R v BAW [2005] QCA 334; R v BAX [2005] QCA 365; R v Lewis (2006) 163 A Crim R 169; [2006] QCA 121; R v Mitchell [2006] QCA 240; R v McDougall and Collas…
R v McDougall and Collas
[2006] QCA 365 Para 1

…2002. [10](2003) 39 MVR 470; CA No 230 of 2003, 26 September 2003. [11]CA No 283 of 2003, 2 December 2003. [12]CA No 11 of 2005, 6 May 2005. [13][2005] QCA 223; CA No 42 of 2005, 24 June 2005. [14]CA No 116 of 2005, 9 September 2005. [15]CA No 162 of 2005, 30 September 2005. [16](2006) 163 A Crim R 169; CA No 32…
R v Mitchell
[2006] QCA 240 Para 1

…he discretion contained in s 161B(3), a sentencing judge is required to determine a sentence which is “just in all the circumstances” ( R v Cowie [2005] QCA 223 at [19]). However, where the making of a declaration is discretionary, it is not necessary in order that the discretion be exercised that the circumstanc…
R v Lyon
[2006] QCA 146 Para 19

…[8] R v Cowie [2005] QCA 223 at [19].…
R v Lewis
[2006] QCA 121

…ether serious violent offender declaration is part of a two-step or integrated sentencing process R v Cowie [2005] QCA 223; CA No 42 of 2005, 24 June 2005, followed R v Eveleigh [2002] QCA 219; [2003] 1 Qd R 398, followed R v Lund [2000] QCA 85; CA No 386 of 1999, 17 March 2000, considered COUNSEL: The applicant…
R v HAA
[2006] QCA 55

…R v Cowie [2005] QCA 223; CA No 42 of 2005, 24 June 2005, discussed R v Herford [2001] QCA 177; CA No 335 of 2000, 11 May 2001, cited R v SAG [2004] QCA 286; CA No 55 of 2004, 6 August 2004, discussed R v Shillingsworth [2001] QCA 172; [2002] 1 Qd R 527, cited Criminal Code 1899 (Qld), s 229B(3) Penalties and Sen…

View all 19 citing cases →

Cases cited in this decision · 10 of 10 shown

R v Rankmore; ex parte A-G (Qld)
[2002] QCA 492 Para 1

…nd cruelty. There were also two counts of rape in respect of which the offender had pleaded not guilty although he had pleaded guilty to torture. [17][2002] QCA 492; CA No 223, CA No 285 and CA No 288 of 2002, 15 November 2002.…
R v Roelandts
[2002] QCA 254 Para 1

…t was a sentence of eight to 10 years reduced to six years for the plea of guilty, and the other members of the Court expressed their agreement. [19][2002] QCA 254; (2002) 131 A Crim R 603.…
R v Eveleigh
[2002] QCA 219

…00] 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, app…
R v Herford
[2001] QCA 177 Para 1

…mulative sentence was a consideration relevant to what was "just in all the circumstances" under s 9(1)(a). [9][2001] QCA 172; [2002] 1 Qd R 527. [10][2001] QCA 177; (2001) 119 A Crim R 546. [11][2001] QCA 172 at [23] - [26]; [2002] 1 Qd R 527 at 532 - 533.…
R v Shillingsworth
[2001] QCA 172 Para 1

…e operation of s 156A in requiring a cumulative sentence was a consideration relevant to what was "just in all the circumstances" under s 9(1)(a). [9][2001] QCA 172; [2002] 1 Qd R 527. [10][2001] QCA 177; (2001) 119 A Crim R 546. [11][2001] QCA 172 at [23] - [26]; [2002] 1 Qd R 527 at 532 - 533.…
R v B; ex parte A-G
[2000] QCA 110

…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…
R v Crossley
[1999] QCA 223

…10 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, applie…
R v Bojovic
[1999] QCA 206

…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 Evel…
R v R & S; ex parte
[1999] QCA 181 Para 1

…injuries, blood complications, infections, malnutrition and long-term psychological trauma. The infant was kept tied up and placed in cupboards. [18][1999] QCA 181; [2000] 2 Qd R 413.…
R v Booth
[1999] QCA 100

…2 (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 H…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
161A 2 mentions (from Para 1)

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…