SUPREME COURT OF QUEENSLAND
CITATION:
R v Evans; R v Pearce [2011] QCA 135
PARTIES:
R
v
EVANS, Chris
(applicant)R
v
PEARCE, Jacob Gary
(applicant)FILE NO/S:
CA No 14 of 2011
CA No 15 of 2011
DC No 31 of 2011DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Southport
DELIVERED ON:
21 June 2011
DELIVERED AT:
Brisbane
HEARING DATE:
2 June 2011
JUDGES:
Margaret McMurdo P, Chesterman JA and Fryberg J
Separate reasons for judgment of each member of the Court, Margaret McMurdo P dissenting, Chesterman JA and Fryberg J concurring as to the orders madeORDERS:
APPLICATIONS 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 – judge did not place excessive weight on victim impact statement and general deterrence
Evidence Act 1977 (Qld), s 132C
Penalties and Sentences Act 1992 (Qld), s 15
Victims of Crime Assistance Act 2009 (Qld), s 15R v Singh[2006] QCA 71, considered
COUNSEL:
The applicant Evans appeared on his own behalf
D A Funch for the applicant Pearce
D R Kinsella for the respondentSOLICITORS:
The applicant Evans appeared on his own behalf
L M Searing of Odens Legal applicant Pearce
S T Gillies of the Department of Public Prosecutions (Queensland) for the respondent
MARGARET McMURDO P: Fryberg J has set out the relevant facts which I will not repeat. The sentence imposed on each applicant, two years imprisonment with parole release fixed after nine months, was not manifestly excessive. It gave proper but not excessive weight to the requirement of general deterrence.
In submitting that the sentencing judge gave too much weight to the victim impact statement, the applicant Pearce’s counsel, whose submissions the applicant Evans also relied, emphasised the ex tempore dicta in R v Singh[1] where Fryberg J stated:
"In his sentencing remarks the judge referred to the “consequences not only to [the complainant] physically but to his mental and emotional and psychological health and the impact it has also had on his wife and children." The information upon which his Honour made that finding came from a victim impact statement prepared by the complainant. Sentencing judges should be very careful before acting on assertions of fact made in victim impact statements. The purpose of those statements is primarily therapeutic. For that reason victims should be permitted, and even encouraged, to read their statements to the court. However, if they contain material damaging to the accused which is neither self-evidently correct nor known by the accused to be correct (and this includes lay diagnoses of medical and psychiatric conditions) they should not be acted on. The prosecution should call the appropriate supporting evidence. It is unfair to present the accused with the dilemma of challenging a statement of dubious probative value, thereby risking a finding that genuine remorse is lacking, or accepting that statement to his or her detriment."
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- AGLC
- R v Evans; R v Pearce [2011] QCA 135
- Case
- [2011] QCA 135
- Decision Date
CaseChat Overview and Summary
The Court of Appeal considered whether the trial judge's consideration of the victim impact statement and general deterrence led to a manifestly excessive or inadequate sentence. The court noted that while the trial judge did consider these factors, they did so in the context of the overall circumstances of the case and the statutory sentencing principles. The court found that the trial judge appropriately balanced these factors and did not place excessive weight on them. The Court of Appeal held that the sentences were not manifestly excessive or inadequate, and dismissed the applications for leave to appeal.
In light of the findings, the Court of Appeal refused the applicants' applications for leave to appeal against their sentences. The applicants' sentences, as determined by the trial judge, were upheld. The Court of Appeal emphasised that the trial judge had carefully considered all relevant factors and applied the sentencing principles correctly, resulting in sentences that were neither manifestly excessive nor inadequate.
Orders
Orders of the court
APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.
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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