R v Giezendanner - [2006] QCA 135

SUPREME COURT OF QUEENSLAND

CITATION:

R v Giezendanner [2006] QCA 135

PARTIES:

R
v
GIEZENDANNER, Corey James
(applicant)

FILE NO/S:

CA No 327 of 2005
SC No 973 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2006

JUDGES:

Williams and Jerrard JJA and Fryberg J
Separate reasons for judgment of each member of the Court, Williams JA and Fryberg J concurring as to the order made, Jerrard JA dissenting

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 – APPLICATION TO REDUCE SENTENCE – WHEN REFUSED – where applicant pleaded guilty to armed robbery in company with personal violence –where applicant offered to act as a lookout during a home invasion – where occupier was murdered – where applicant assisted accomplices to clean up after murder – whether sentence manifestly excessive – whether plea of guilty was adequately recognised by learned sentencing judge

R v Couper [2003] QCA 429; CA No 213 of 2003, 25 September 2003, distinguished
R v Houldsworth & Crossman [1999] QCA 322; CA No 150 and 156 of 1999, 20 August 1999, considered
R v Rankin [2004] QCA 2; CA No 289 of 2003, 3 Feburary 2004, considered

R v Renata [2000] QCA 328; CA No 119 of 2000, 18 August 2000, distinguished

COUNSEL:

A W Moynihan for the applicant
L J Clare for the respondent

SOLICITORS:

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

WILLIAMS JA: There is nothing I wish to add to the reasons for judgment of Fryberg J. For those reasons the application for leave to appeal against sentence should be dismissed.

JERRARD JA: In this application I have read the reasons for judgment and order proposed by Fryberg J, and agree with His Honour that the head sentence of five years imprisonment has not been shown to be manifestly excessive, for the reasons Fryberg J gives. However, I was persuaded by the applicant’s counsel that the learned judge’s sentencing remarks did not make clear if any allowance had been made for the applicant’s plea of guilty, and in the circumstances I consider that an allowance should have been made. I would have allowed the application and the appeal, to the extent of varying the sentence for five years imprisonment by an order that the applicant be considered eligible for post prison based community release after he has served two years of the term.

FRYBERG J: On 9 November 2005 the applicant pleaded guilty to armed robbery in company with personal violence. On 24 November 2005 he was sentenced by McMurdo J to imprisonment for five years. No recommendation for early eligibility for post-prison community based release was made. The offence was not declared a serious…

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 Giezendanner

Details

AGLC: R v Giezendanner [2006] QCA 135
Case: [2006] QCA 135
Decision Date: 28 April 2006

CaseChat Overview and Summary

In the matter of R v Giezendanner, the applicant, a convicted person, appealed against the sentence imposed following a guilty plea to armed robbery in company with personal violence. The applicant had offered to act as a lookout during a home invasion which resulted in the murder of the occupier. Following the murder, the applicant assisted his accomplices in cleaning up after the crime. The primary legal issue for the court was whether the sentence was manifestly excessive and whether the plea of guilty was adequately recognised by the sentencing judge.

The court examined the circumstances of the crime, the role of the applicant, and the sentence imposed. The court noted that while the applicant had pleaded guilty, his role in the crime was significant, involving both planning and post-crime activities. The court held that the sentence was not manifestly excessive and that the sentencing judge had appropriately considered the plea of guilty. The court found that the sentence reflected the gravity of the crime and the culpability of the applicant. Consequently, the appeal against the sentence was dismissed.

The court further clarified that in cases of significant crimes involving violence and planning, a sentence reflecting the seriousness of the offence is warranted. The court confirmed that the sentence imposed was not only appropriate but also recognised the applicant's plea of guilty. The court dismissed the application for leave to appeal against the sentence, upholding the original sentencing decision.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

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 Giezendanner [2006] QCA 135
PARTIES:	R v GIEZENDANNER, Corey James (applicant)
FILE NO/S:	CA No 327 of 2005 SC No 973 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	28 April 2006
DELIVERED AT:	Brisbane
HEARING DATE:	23 March 2006
JUDGES:	Williams and Jerrard JJA and Fryberg J Separate reasons for judgment of each member of the Court, Williams JA and Fryberg J concurring as to the order made, Jerrard JA dissenting
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 – APPLICATION TO REDUCE SENTENCE – WHEN REFUSED – where applicant pleaded guilty to armed robbery in company with personal violence –where applicant offered to act as a lookout during a home invasion – where occupier was murdered – where applicant assisted accomplices to clean up after murder – whether sentence manifestly excessive – whether plea of guilty was adequately recognised by learned sentencing judge R v Couper [2003] QCA 429; CA No 213 of 2003, 25 September 2003, distinguished R v Houldsworth & Crossman [1999] QCA 322; CA No 150 and 156 of 1999, 20 August 1999, considered R v Rankin [2004] QCA 2; CA No 289 of 2003, 3 Feburary 2004, considered R v Renata [2000] QCA 328; CA No 119 of 2000, 18 August 2000, distinguished
COUNSEL:	A W Moynihan for the applicant L J Clare for the respondent
SOLICITORS:	Legal Aid (Queensland) for the applicant Director of Public Prosecutions (Queensland) for the respondent