R v Harold - [2011] QCA 99

SUPREME COURT OF QUEENSLAND

CITATION:

R v Harold [2011] QCA 99

PARTIES:

R
v
HAROLD, Cyril Dennis
(applicant)

FILE NO/S:

CA No 128 of 2010
SC No 31 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Mt Isa

DELIVERED ON:

17 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

3 March 2011

JUDGES:

Chesterman and White JJA and Martin J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant was convicted by jury of manslaughter of his de facto partner – where applicant was sentenced to 14 years imprisonment – where sentence took into account, among other things, nine summary offences and two charges of assault occasioning bodily harm to which the applicant pleaded guilty – where on sentencing the prosecution submitted that a sentence of 12 years imprisonment should be imposed on the manslaughter conviction and a further two years imprisonment should be imposed for subsequent offences which the applicant pleaded guilty to at the hearing – where the applicant contends the addition of the further two years was excessive – where the applicant argues that the sentence of two years should have been imposed concurrently rather than as part of a global sentence or cumulatively – where the learned sentencing judge did not upon arriving at a sentence on the manslaughter charge take into account the other matters to which the applicant had pleaded guilty during the sentencing hearing – where the applicant was not remorseful and did not plead guilty on the manslaughter charge – where the applicant had a considerable history of violence towards the deceased – whether the sentence is manifestly excessive

R v Bell; ex parte Attorney-General (Qld) [1994] QCA 220, cited
R v Dwyer[2008] QCA 117, considered
R v Mooka[2007] QCA 36, cited
R v Sebo, ex parte A-G (Qld) (2007) 179 A Crim R 24; [2007] QCA 426, considered

COUNSEL:

R A East for the applicant
G P Cash for the respondent

SOLICITORS:

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

[1] CHESTERMAN JA: I agree that the application for leave to appeal against sentence should be refused, for the reasons given by Martin J.

[2] WHITE JA: I agree for the reasons given by Martin J that the application for leave to appeal against sentence should be refused.

[3] MARTIN J: On 27 March 2007 the applicant was convicted by a jury of the manslaughter of his de facto partner. On 19 April 2007 he was sentenced to a term of 14 years imprisonment. The sentence took into account, among other things, nine summary offences and two charges of assault occasioning bodily harm to which he had pleaded guilty.

[4] On…

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 Harold

Details

AGLC: R v Harold [2011] QCA 99
Case: [2011] QCA 99
Decision Date: 17 May 2011

CaseChat Overview and Summary

In the matter of R v Harold, the appellant, who had been convicted of the manslaughter of his de facto partner, appealed against the sentence imposed by the sentencing judge. The appellant, who had pleaded guilty to two charges of assault occasioning bodily harm and nine summary offences, argued that the sentence of 14 years imprisonment was manifestly excessive, particularly in light of the sentencing judge’s failure to consider the guilty pleas when determining the sentence for the manslaughter charge. The appellant contended that the sentence of two years imprisonment for the subsequent offences should have been imposed concurrently rather than cumulatively.

The court was required to determine whether the sentence imposed by the sentencing judge was manifestly excessive. This involved examining whether the sentence was inappropriate in light of the principles of sentencing and the particular circumstances of the case, including the appellant’s history of violence towards the deceased and his lack of remorse. The court also considered whether the sentencing judge had appropriately taken into account the guilty pleas when determining the sentence for the manslaughter charge.

The court found that the sentence of 14 years imprisonment was not manifestly excessive. The court noted that the appellant had a considerable history of violence towards the deceased and had not shown remorse for his actions. The court also found that the sentencing judge had appropriately considered the guilty pleas when determining the sentence for the manslaughter charge. The court held that the sentence of two years for the subsequent offences was appropriately imposed cumulatively, as it reflected the seriousness of the appellant’s offending and his lack of remorse. The appeal against sentence was therefore dismissed.

There being no prospect of success in an appeal against sentence, the court refused the appellant leave to appeal.

Orders

Orders of the court

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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CITATION:	R v Harold [2011] QCA 99
PARTIES:	R v HAROLD, Cyril Dennis (applicant)
FILE NO/S:	CA No 128 of 2010 SC No 31 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Mt Isa
DELIVERED ON:	17 May 2011
DELIVERED AT:	Brisbane
HEARING DATE:	3 March 2011
JUDGES:	Chesterman and White JJA and Martin J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant was convicted by jury of manslaughter of his de facto partner – where applicant was sentenced to 14 years imprisonment – where sentence took into account, among other things, nine summary offences and two charges of assault occasioning bodily harm to which the applicant pleaded guilty – where on sentencing the prosecution submitted that a sentence of 12 years imprisonment should be imposed on the manslaughter conviction and a further two years imprisonment should be imposed for subsequent offences which the applicant pleaded guilty to at the hearing – where the applicant contends the addition of the further two years was excessive – where the applicant argues that the sentence of two years should have been imposed concurrently rather than as part of a global sentence or cumulatively – where the learned sentencing judge did not upon arriving at a sentence on the manslaughter charge take into account the other matters to which the applicant had pleaded guilty during the sentencing hearing – where the applicant was not remorseful and did not plead guilty on the manslaughter charge – where the applicant had a considerable history of violence towards the deceased – whether the sentence is manifestly excessive R v Bell; ex parte Attorney-General (Qld) [1994] QCA 220, cited R v Dwyer[2008] QCA 117, considered R v Mooka[2007] QCA 36, cited R v Sebo, ex parte A-G (Qld) (2007) 179 A Crim R 24; [2007] QCA 426, considered
COUNSEL:	R A East for the applicant G P Cash for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent