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R v Derks

R v Derks

Case [2011] QCA 295 21 October 2011

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Derks [2011] QCA 295

PARTIES:

R
v
DERKS, Robert Alan
(applicant)

FILE NO/S:

CA No 110 of 2011
SC No 20 of 2011
SC No 39 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

21 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

29 September 2011

JUDGES:

Margaret McMurdo P, White JA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.Grant the application for leave to appeal.

2.Allow the appeal to the extent of:

substituting the period of 11 years for the period of 13 years on count 8; anda)

ordering that the two year sentence on count 7 be served cumulatively on the sentence imposed on count 8; andb)

fixing the date the applicant is eligible for parole at 6 November 2019.c)

3. The sentence imposed at first instance is otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to stealing (count 1); three counts of unlawfully using a motor vehicle (counts 2, 5 and 6); dangerous operation of a motor vehicle (count 3); unlawful possession of a motor vehicle (count 4); dangerous operation of a motor vehicle with a circumstance of aggravation (count 7); and manslaughter (count 8) – where the applicant was sentenced on count 8 to 13 years imprisonment and that offence was declared to be a serious violent offence – where the applicant was sentenced to lesser concurrent terms of imprisonment on the remaining offences – whether the sentence was manifestly excessive

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – SERIOUS OR VIOLENT OFFENDER – where the applicant argued that the sentencing judge erred in increasing the head sentence on count 8 (declared to be a serious violence offence) to reflect offending which was not subject to a serious violent offence declaration – where applicant argued that the offences other than count 8 would not have attracted a declaration and this has the consequence that the applicant could only become eligible for parole in respect of them after serving 80 per cent of the global sentence – whether the sentencing judge erred

Penalties and Sentences Act 1992 (Qld), Pt 9A

R v Clark [2009] QCA 361, considered
R v Folland [2004] QCA 209, considered
R v Frost; ex parte A-G (2004) 149 A Crim R 151; [2004] QCA 309, distinguished
R v Kelly [1999] QCA 296, considered
R v Major; ex parte A-G (Qld)[2011] QCA 210, cited
R v Robertson [2010] QCA 319, considered
R v Wooler [1971] QWN 10, cited

COUNSEL:

J McInnes for the applicant
A D Anderson for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director…

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 Derks

Details

AGLC: R v Derks [2011] QCA 295
Case: [2011] QCA 295
Decision Date: 21 October 2011

CaseChat Overview and Summary

In the case of R v Derks, the applicant appealed against the sentence imposed by the trial judge, arguing that it was manifestly excessive. The applicant had pleaded guilty to various charges, including manslaughter, and was sentenced to 13 years imprisonment for the manslaughter charge, which was declared to be a serious violent offence. The applicant received concurrent lesser sentences for other charges. The appeal centred on the severity of the sentence and the impact of the declaration of the manslaughter charge as a serious violent offence.

The court was required to determine whether the sentence was manifestly excessive or inadequate, and whether the sentencing judge had erred in increasing the head sentence on the serious violent offence to reflect additional offending that was not subject to such a declaration. The applicant argued that the other charges would not have attracted such a declaration, and this meant that the applicant could only become eligible for parole after serving 80 per cent of the global sentence.

The court found that the sentence on count 8 was manifestly excessive. The court substituted the period of 11 years for the period of 13 years on count 8, and ordered that the two-year sentence on count 7 be served cumulatively on the sentence imposed on count 8. The court also fixed the date the applicant is eligible for parole at 6 November 2019. The sentence imposed at first instance was otherwise confirmed.

The court granted leave to appeal and allowed the appeal in part, modifying the sentence as outlined above. The remainder of the sentence was confirmed, and the applicant's argument regarding the impact of the serious violent offence declaration on parole eligibility was not upheld.

Orders

Orders of the court

1.Grant the application for leave to appeal.

2.Allow the appeal to the extent of:

substituting the period of 11 years for the period of 13 years on count 8; anda)

ordering that the two year sentence on count 7 be served cumulatively on the sentence imposed on count 8; andb)

fixing the date the applicant is eligible for parole at 6 November 2019.c)

3. The sentence imposed at first instance is otherwise confirmed.

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

R v Derks [2011] QCA 295

Most Recent Citation

R v Glenbar [2013] QCA 353

Cases Citing This Decision

R v Johnston [2025] QCA 112
Citation 1 (Para 13)

…n, he be eligible for parole after serving 32 months’ imprisonment. [2] R v Kelly [1999] QCA 296; R v Pavey-Rees [2020] QCA 29; R v Derks [2011] QCA 295; R v Glenbar [2013] QCA 353; R v Clark [2009] QCA 361.…
R v Hughes [2025] QCA 72
Citation 2 (Para 5)

…the sentencing remarks that reference had been made to R v Folland [2004] QCA 209, R v Clark [2009] QCA 361, R v Robertson [2010] QCA 319, R v Derks [2011] QCA 295, R v Pavey-Rees [2020] QCA 29, R v Kirke [2020] QCA 53 and R v YTZ; Ex parte Attorney-General (Qld); R v YTZ [2023] QCA 87. The last-mentioned case c…
R v Lee [2021] QCA 233
Citation 3

…7, considered Power v The Queen (1974) 131 CLR 623; (1974) 48 ALJR 297; [1974] HCA 26, considered R v Derks [2011] QCA 295, considered R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, considered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered R v RBD [2020] QCA 136, considered R v Utley [2017] QCA…
R v Armitage; R v Armitage; R v Dean [2021] QCA 185
Citation 4 (Para 3)

…herwise have been the global sentence. I agree with what the President has written on this aspect of the application.”[86] [85] AB157.45-48. [86] [2011] QCA 295, [44] (Fryberg J). See also, McMurdo P’s reasons at [26]-[29] of that decision.…
R v Kruezi [2020] QCA 222
Citation 5 (Para 5)

…as a result a serious violent offender declaration was made resulting in a non-parole period of 80 per cent applying in respect of all offending. [62][2011] QCA 295.…
R v RBD [2020] QCA 136
Citation 6 (Para 1)

…one for an offender of the applicant’s youth and lack of significant criminal history; but it is not outside a proper exercise of discretion. [1][2011] QCA 295.…
R v Kirke [2020] QCA 53
Citation 7 (Para 33)

…te where the primary offence is a serious violent offence and at least some of the others are not. As the Court of Appeal recognised in R v Derks [2011] QCA 295,[5] to the extent that the head sentence is increased to reflect the offences which are not serious violent offences, the declaration will effectively re…
R v Pavey-Rees [2020] QCA 29
Citation 8 (Para 10)

…ne of 10 years imprisonment with the automatic serious violent offence declaration. [1][1999] QCA 296. [2][2009] QCA 361. [3][2010] QCA 319. [4][2011] QCA 295. [5][2013] QCA 353. Manifest excess?…
R v Hutchinson [2018] QCA 29
Citation 9 (Para 21)

…ed onto the notional sentence for the manslaughter to reflect the overall criminality arising from both offences, following the approach in R v Derks [2011] QCA 295 at [28]. That approach resulted in the sentence of 15 years and six months for the offence of manslaughter. Did s 9(10A) of the Act apply to the sent…
R v Woods [2016] QCA 310
Citation 10

…ffence order, might also have been possible, and might be considered as suitable and consistent with the approach of the Court of Appeal in R v Derks [2011] QCA 295 at paragraph 26. 10.Ultimately, it is my view that the approach I have adopted of imposing the heavier sentence on the objectively less serious offen…
R v Glenbar [2013] QCA 353
Citation 11 (Para 1)

…orse; the applicant’s excellent work history; his efforts whilst in custody; and his excellent prospects of rehabilitation. [14][2009] QCA 361. [15][2011] QCA 295. [16][2004] QCA 209. [17]Unreported, Supreme Court of Queensland, Indictment Nos 71 and 519 of 2012, Mullins J, 19 November 2012. [18]Unreported, Supre…
The Queen v Gwilliams [2013] QSC 27
Citation 12 (Para 1)

…nished[2]. [2]This approach does not involve the imposition of a global sentence on the manslaughter charge in respect of both offences: cf R v Derks [2011] QCA 295, [26]-[28], [44]. Rather, the decision not to punish for the lesser offence, beyond recording the conviction, recognises that the pertinent facts hav…

See all citing cases →

Cases Cited

R v Major; ex parte Attorney-General [2011] QCA 210
Citation 1 (Para 1)

…s for judgment. This Court is a court of record and the integrity of its record ought to be preserved.[13] [13] Compare R v Major; ex parte A-G (Qld) [2011] QCA 210 at [84].…
R v Robertson [2010] QCA 319
Citation 2 (Para 1)

…v Frost; ex parte A-G ;[2] R v Clark [3] and R v Robertson .[4] [1][1999] QCA 296. [2](2004) 149 A Crim R 151; [2004] QCA 309. [3][2009] QCA 361. [4][2010] QCA 319.…
R v Clark [2009] QCA 361
Citation 3 (Para 1)

…ed R v Kelly ;[1] R v Frost; ex parte A-G ;[2] R v Clark [3] and R v Robertson .[4] [1][1999] QCA 296. [2](2004) 149 A Crim R 151; [2004] QCA 309. [3][2009] QCA 361. [4][2010] QCA 319.…
R v Frost; ex parte A-G [2004] QCA 309
Citation 4 (Para 1)

…propositions he cited R v Kelly ;[1] R v Frost; ex parte A-G ;[2] R v Clark [3] and R v Robertson .[4] [1][1999] QCA 296. [2](2004) 149 A Crim R 151; [2004] QCA 309. [3][2009] QCA 361. [4][2010] QCA 319.…
R v Folland [2004] QCA 209
Citation 5

…e sentencing judge erred Penalties and Sentences Act 1992 (Qld), Pt 9A R v Clark [2009] QCA 361, considered R v Folland [2004] QCA 209, considered R v Frost; ex parte A-G (2004) 149 A Crim R 151; [2004] QCA 309, distinguished R v Kelly [1999] QCA 296, considered R v Major; ex parte A-G (Qld) [2011] QCA 210, cited…
R v Kelly [1999] QCA 296
Citation 6 (Para 1)

…d as even more serious. In support of these propositions he cited R v Kelly ;[1] R v Frost; ex parte A-G ;[2] R v Clark [3] and R v Robertson .[4] [1][1999] QCA 296. [2](2004) 149 A Crim R 151; [2004] QCA 309. [3][2009] QCA 361. [4][2010] QCA 319.…

Legislation Cited

Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 1)

CITATION:	R v Derks [2011] QCA 295
PARTIES:	R v DERKS, Robert Alan (applicant)
FILE NO/S:	CA No 110 of 2011 SC No 20 of 2011 SC No 39 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	21 October 2011
DELIVERED AT:	Brisbane
HEARING DATE:	29 September 2011
JUDGES:	Margaret McMurdo P, White JA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1.Grant the application for leave to appeal. 2.Allow the appeal to the extent of: substituting the period of 11 years for the period of 13 years on count 8; anda) ordering that the two year sentence on count 7 be served cumulatively on the sentence imposed on count 8; andb) fixing the date the applicant is eligible for parole at 6 November 2019.c) 3. The sentence imposed at first instance is otherwise confirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to stealing (count 1); three counts of unlawfully using a motor vehicle (counts 2, 5 and 6); dangerous operation of a motor vehicle (count 3); unlawful possession of a motor vehicle (count 4); dangerous operation of a motor vehicle with a circumstance of aggravation (count 7); and manslaughter (count 8) – where the applicant was sentenced on count 8 to 13 years imprisonment and that offence was declared to be a serious violent offence – where the applicant was sentenced to lesser concurrent terms of imprisonment on the remaining offences – whether the sentence was manifestly excessive CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – SERIOUS OR VIOLENT OFFENDER – where the applicant argued that the sentencing judge erred in increasing the head sentence on count 8 (declared to be a serious violence offence) to reflect offending which was not subject to a serious violent offence declaration – where applicant argued that the offences other than count 8 would not have attracted a declaration and this has the consequence that the applicant could only become eligible for parole in respect of them after serving 80 per cent of the global sentence – whether the sentencing judge erred Penalties and Sentences Act 1992 (Qld), Pt 9A R v Clark [2009] QCA 361, considered R v Folland [2004] QCA 209, considered R v Frost; ex parte A-G (2004) 149 A Crim R 151; [2004] QCA 309, distinguished R v Kelly [1999] QCA 296, considered R v Major; ex parte A-G (Qld)[2011] QCA 210, cited R v Robertson [2010] QCA 319, considered R v Wooler [1971] QWN 10, cited
COUNSEL:	J McInnes for the applicant A D Anderson for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director…