R v Emelio - [2012] QCA 111

SUPREME COURT OF QUEENSLAND

CITATION:

R v Emelio [2012] QCA 111

PARTIES:

R
v
EMELIO, Vaai Saua
(appellant)

FILE NO/S:

CA No 73 of 2011
CA No 209 of 2011
SC No 80 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Application for Extension (Sentence)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 April 2012

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2012

JUDGES:

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

ORDERS:

1.     Appeal against conviction for manslaughter dismissed.

2.     Application for leave to appeal against sentence for assault occasioning bodily harm whilst armed and in company granted.

3.     Sentence varied by reducing the term of imprisonment imposed on the charge of assault occasioning bodily harm whilst armed and in company to 18 months to be served concurrently with the sentence for manslaughter.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – VERDICT – Whether the verdict of manslaughter was inconsistent with the acquittal in relation to the second assault charge – when a common purpose pursuant to s 8 of the Criminal Code ends because an individual has withdrawn from that purpose

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – whether the sentence of five years on the charge of assault occasioning bodily harm whilst armed and in company was manifestly excessive

Criminal Code 1899 (Qld), s 7, s 8

R v Menniti [1985] 1 Qd R 520, cited
R v Saylor [1963] QWN 14, cited
R v Whitehouse [1941] 1 DLR 683, cited

COUNSEL:

M Byrne QC for the appellant
T Fuller for the respondent

SOLICITORS:

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

MARGARET McMURDO P: I agree with Dalton J's reasons for dismissing the appeal against conviction. I also agree with her Honour's reasons for granting leave to appeal against sentence and allowing the appeal by setting aside the sentence of five years imprisonment imposed for assault occasioning bodily harm whilst armed and in company and substituting a sentence of 18 months imprisonment. The options for sentencing this 17 year old first offender for this concerning and serious assault were limited by his six year sentence for manslaughter. For that reason, the sentence imposed for the assault may be of limited use as a comparable sentence for other youthful first offenders convicted of a similar assault.

I agree with the orders proposed by Dalton J.

MUIR JA: I agree with the reasons of Dalton J and with the orders she proposes.

DALTON J: The appellant was convicted after a 31 day trial of one count of manslaughter (as an alternative verdict to murder) and one count of assault occasioning bodily harm whilst armed in company. He appeals the manslaughter conviction and the sentence on the assault charge.

The appellant was 17 years old at the time of the offending. In the early hours…

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 Emelio

Details

AGLC: R v Emelio [2012] QCA 111
Case: [2012] QCA 111
Decision Date: 24 April 2012

CaseChat Overview and Summary

The appellant, Emelio, was convicted of manslaughter and assault occasioning bodily harm whilst armed and in company. He appealed against his conviction for manslaughter and sought leave to appeal against the sentence imposed on the assault charge. The appeal centred on the consistency of the verdict of manslaughter with the acquittal on the second assault charge and the severity of the sentence for the assault occasioning bodily harm charge.

The legal issues involved the interpretation of the concept of common purpose under s 8 of the Criminal Code and whether the withdrawal of an individual from that common purpose could terminate the common purpose for all participants. The appellant argued that the verdict of manslaughter was inconsistent with the acquittal on the second assault charge, as the jury could not have found him to be part of a common purpose with another individual if he had already withdrawn from that purpose. The appellant further contended that the sentence of five years for the assault occasioning bodily harm charge was manifestly excessive.

The court found that the appellant's argument concerning the inconsistency of the verdict was unavailing. The court held that the jury could have found the appellant to be part of a common purpose with another individual even if he had withdrawn from that purpose, as long as he had participated in the commission of the offence. The court further found that the sentence for the assault occasioning bodily harm charge was manifestly excessive and varied the sentence to 18 months to be served concurrently with the sentence for manslaughter. The appeal against the conviction for manslaughter was dismissed, and the application for leave to appeal against the sentence for assault occasioning bodily harm whilst armed and in company was granted.

Orders

Orders of the court

1. Appeal against conviction for manslaughter dismissed.

2. Application for leave to appeal against sentence for assault occasioning bodily harm whilst armed and in company granted.

3. Sentence varied by reducing the term of imprisonment imposed on the charge of assault occasioning bodily harm whilst armed and in company to 18 months to be served concurrently with the sentence for manslaughter.

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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CITATION:	R v Emelio [2012] QCA 111
PARTIES:	R v EMELIO, Vaai Saua (appellant)
FILE NO/S:	CA No 73 of 2011 CA No 209 of 2011 SC No 80 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Application for Extension (Sentence)
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	24 April 2012
DELIVERED AT:	Brisbane
HEARING DATE:	23 March 2012
JUDGES:	Margaret McMurdo P and Muir JA and Dalton J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction for manslaughter dismissed. 2. Application for leave to appeal against sentence for assault occasioning bodily harm whilst armed and in company granted. 3. Sentence varied by reducing the term of imprisonment imposed on the charge of assault occasioning bodily harm whilst armed and in company to 18 months to be served concurrently with the sentence for manslaughter.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – VERDICT – Whether the verdict of manslaughter was inconsistent with the acquittal in relation to the second assault charge – when a common purpose pursuant to s 8 of the Criminal Code ends because an individual has withdrawn from that purpose CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – whether the sentence of five years on the charge of assault occasioning bodily harm whilst armed and in company was manifestly excessive Criminal Code 1899 (Qld), s 7, s 8 R v Menniti [1985] 1 Qd R 520, cited R v Saylor [1963] QWN 14, cited R v Whitehouse [1941] 1 DLR 683, cited
COUNSEL:	M Byrne QC for the appellant T Fuller for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent