R v Gerrard - [2014] QCA 29

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gerrard [2014] QCA 29

PARTIES:

R
v
GERRARD, Nickolas John
(applicant)

FILE NO/S:

CA No 202 of 2013
DC No 50 of 2013
DC No 54 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED ON:

28 February 2014

DELIVERED AT:

Brisbane

HEARING DATE:

4 February 2014

JUDGES:

Margaret McMurdo P and Fraser JA and Mullins J
Separate reasons for judgment of each member of the Court, Fraser JA and Mullins J concurring as to the order made, Margaret McMurdo P dissenting

ORDER:

Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to armed robbery and multiple summary offences – where the applicant was sentenced to five years imprisonment, to be served cumulatively on an existing imprisonment sentence being served due to parole breach – where the parole date was effectively two years after the date of sentencing – whether the sentence was manifestly excessive – whether the totality of imprisonment to be served violated the totality principle

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where the applicant committed armed robbery with a co-offender – where the applicant was the principal offender and the co-offender drove the applicant from the crime scene afterwards – where the co-offender gave an early statement to police admitting of his culpability – where the co-offender was sentenced to three years imprisonment, to be served cumulatively on an existing imprisonment sentence being served due to parole breach – where the co-offender’s parole date was effectively 13 months after the date of sentencing – whether there was a manifest discrepancy between the two sentences such as to engender a justifiable sense of grievance in the applicant that would warrant the Court’s interference

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, considered
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, applied
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, considered
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, applied
R v Main and Fauid [2012] QCA 80, considered
R v Moss[1999] QCA 426, considered

COUNSEL:

S Hamlyn-Harris for the applicant
P J McCarthy for the respondent

SOLICITORS:

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

MARGARET McMURDO P: The applicant pleaded guilty on 18 June 2013 to an armed robbery of a convenience store at Bundaberg on 13 April 2013, together with some related summary drug offences. He was arrested on these charges on 13 April 2013.

About nine months earlier in July 2012, he was convicted of a series of offences including dangerous operation of a vehicle, burglary, and unlawful use of a motor vehicle.…

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 Gerrard

Details

AGLC: R v Gerrard [2014] QCA 29
Case: [2014] QCA 29
Decision Date: 28 February 2014

CaseChat Overview and Summary

The case of R v Gerrard involved the applicant appealing against his sentence for armed robbery and related summary offences. The applicant, who had pleaded guilty, was sentenced to five years imprisonment, to be served cumulatively with an existing sentence for parole breach, resulting in an effective parole date two years after the sentencing date. The applicant’s co-offender, who drove him from the crime scene and admitted culpability, was sentenced to three years imprisonment, with an effective parole date 13 months post-sentencing. The applicant contested that his sentence was manifestly excessive and inadequate in comparison to his co-offender’s sentence, arguing it violated the totality principle.

The court needed to determine whether the applicant's sentence was manifestly excessive and if the cumulative sentences breached the totality principle by imposing an unjust disparity in the total imprisonment time between the applicant and his co-offender. The court was also tasked with evaluating if the sentencing disparity created a sense of grievance that warranted judicial intervention.

In dismissing the appeal, the court found that the sentencing judge had adequately considered the principles of sentencing and the totality principle. The court held that the disparity in the sentences, while noticeable, did not reach the threshold of manifest injustice necessary for the court to interfere. The court further concluded that the sentence was not manifestly excessive and was within the appropriate range for the offences committed. As such, the application for leave to appeal was refused.

Accordingly, the court ordered that the application for leave to appeal be dismissed, and no further appeal would be entertained by the court.

Orders

Orders of the court

Application for leave to appeal 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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CITATION:	R v Gerrard [2014] QCA 29
PARTIES:	R v GERRARD, Nickolas John (applicant)
FILE NO/S:	CA No 202 of 2013 DC No 50 of 2013 DC No 54 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Bundaberg
DELIVERED ON:	28 February 2014
DELIVERED AT:	Brisbane
HEARING DATE:	4 February 2014
JUDGES:	Margaret McMurdo P and Fraser JA and Mullins J Separate reasons for judgment of each member of the Court, Fraser JA and Mullins J concurring as to the order made, Margaret McMurdo P dissenting
ORDER:	Application for leave to appeal refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to armed robbery and multiple summary offences – where the applicant was sentenced to five years imprisonment, to be served cumulatively on an existing imprisonment sentence being served due to parole breach – where the parole date was effectively two years after the date of sentencing – whether the sentence was manifestly excessive – whether the totality of imprisonment to be served violated the totality principle CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where the applicant committed armed robbery with a co-offender – where the applicant was the principal offender and the co-offender drove the applicant from the crime scene afterwards – where the co-offender gave an early statement to police admitting of his culpability – where the co-offender was sentenced to three years imprisonment, to be served cumulatively on an existing imprisonment sentence being served due to parole breach – where the co-offender’s parole date was effectively 13 months after the date of sentencing – whether there was a manifest discrepancy between the two sentences such as to engender a justifiable sense of grievance in the applicant that would warrant the Court’s interference AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, considered Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, applied Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, considered Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, applied R v Main and Fauid [2012] QCA 80, considered R v Moss[1999] QCA 426, considered
COUNSEL:	S Hamlyn-Harris for the applicant P J McCarthy for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent