R v Hbi - [2013] QCA 369

SUPREME COURT OF QUEENSLAND

CITATION:

R v HBI [2013] QCA 369

PARTIES:

R
v
HBI
(applicant)

FILE NO/S:

CA No 169 of 2013
SC No 479 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

26 November 2013

JUDGES:

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

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant's brother-in-law, A, shot and killed the deceased – where the applicant provided somewhere to store the car in which A had placed the deceased's body, provided A with a replacement vehicle and drove him to purchase pre-mixed concrete – where the applicant watched A lift the deceased into a 44 gallon drum, operated his tractor to lift the drum onto the back of his utility, watched A pour pre-mixed concrete and water into the drum and then made his utility available to A for the transport and disposal of the drum – where the 61 year old applicant had no previous convictions, acted out of a misguided sense of loyalty to a family member, suffered from chronic agitated depressive disease and had a young and needy son with symptomology consistent with Asperger's Syndrome – where the applicant initially denied knowledge of what happened to the deceased but subsequently cooperated with police – where the applicant pleaded guilty to accessory after the fact to murder – where the applicant was sentenced to five years imprisonment, suspended after 12 months with an operational period of five years – where the applicant contends that his sentence was manifestly excessive and that the sentencing judge gave insufficient weight to factors of mitigation, especially his mental health issues – whether sentencing judge erred – whether sentence manifestly excessive

Criminal Code 1899 (Qld), s 307
Penalties and Sentences Act 1992 (Qld), s 13A

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, cited
R v Cooper, unreported, Helman J, Supreme Court of Queensland, Indictment No 604 of 2006, 14 September 2006, cited
R v Dileski (2002) 132 A Crim R 408; [2002] NSWCCA 345, cited
R v Goodger[2009] QCA 377, cited
R v Hawken (1986) 27 A Crim R 32, cited
R v Houghton (2002) 129 A Crim R 313; [2002] QCA 159, cited
R v McKenzie, unreported, Muir J, Supreme Court of Queensland, Indictment No 480 of 1997, 18 March 1998, cited
R v Murdoch and O'Brien, unreported, White J, Supreme Court of Queensland, Indictment No 92 of 2006, 25 May 2006, cited
R v Neuherz, unreported, White J, Supreme Court of Queensland, Indictment No 92 of 2006, 17 March 2006, cited
R v Tsiaras

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 Hbi

Details

AGLC: R v HBI [2013] QCA 369
Case: [2013] QCA 369
Decision Date: 10 December 2013

CaseChat Overview and Summary

The appellant, R, appealed against the sentence imposed by the court. The appellant's brother-in-law, A, had shot and killed the deceased. The appellant provided a place to store the car in which A had placed the deceased's body, a replacement vehicle, and drove A to purchase pre-mixed concrete. The appellant also watched A lift the deceased into a 44 gallon drum, operated his tractor to lift the drum onto the back of his utility, watched A pour pre-mixed concrete and water into the drum, and made his utility available to A for the transport and disposal of the drum. The appellant pleaded guilty to accessory after the fact to murder and was sentenced to five years imprisonment, suspended after 12 months with an operational period of five years. The appellant argued that the sentence was manifestly excessive and that the sentencing judge gave insufficient weight to factors of mitigation, especially his mental health issues.

The court was required to decide whether the sentencing judge erred in imposing the sentence and whether the sentence was manifestly excessive. The court noted that the appellant had provided substantial assistance to A in disposing of the deceased's body and had acted out of a misguided sense of loyalty to a family member. The court also noted that the appellant had no previous convictions and had cooperated with the police. However, the court found that the appellant's mental health issues did not warrant a reduction in sentence. The court held that the sentence was not manifestly excessive and that the sentencing judge had appropriately considered the factors of mitigation.

The court refused the application for leave to appeal against sentence. The court found that the sentence was not manifestly excessive and that the sentencing judge had appropriately considered the factors of mitigation. The court noted that the appellant's mental health issues did not warrant a reduction in sentence and that the appellant had provided substantial assistance to A in disposing of the deceased's body. The court held that the sentence was appropriate and did not constitute a manifest excess.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v HBI [2013] QCA 369
PARTIES:	R v HBI (applicant)
FILE NO/S:	CA No 169 of 2013 SC No 479 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	10 December 2013
DELIVERED AT:	Brisbane
HEARING DATE:	26 November 2013
JUDGES:	Margaret McMurdo P, Gotterson JA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant's brother-in-law, A, shot and killed the deceased – where the applicant provided somewhere to store the car in which A had placed the deceased's body, provided A with a replacement vehicle and drove him to purchase pre-mixed concrete – where the applicant watched A lift the deceased into a 44 gallon drum, operated his tractor to lift the drum onto the back of his utility, watched A pour pre-mixed concrete and water into the drum and then made his utility available to A for the transport and disposal of the drum – where the 61 year old applicant had no previous convictions, acted out of a misguided sense of loyalty to a family member, suffered from chronic agitated depressive disease and had a young and needy son with symptomology consistent with Asperger's Syndrome – where the applicant initially denied knowledge of what happened to the deceased but subsequently cooperated with police – where the applicant pleaded guilty to accessory after the fact to murder – where the applicant was sentenced to five years imprisonment, suspended after 12 months with an operational period of five years – where the applicant contends that his sentence was manifestly excessive and that the sentencing judge gave insufficient weight to factors of mitigation, especially his mental health issues – whether sentencing judge erred – whether sentence manifestly excessive Criminal Code 1899 (Qld), s 307 Penalties and Sentences Act 1992 (Qld), s 13A Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, cited R v Cooper, unreported, Helman J, Supreme Court of Queensland, Indictment No 604 of 2006, 14 September 2006, cited R v Dileski (2002) 132 A Crim R 408; [2002] NSWCCA 345, cited R v Goodger[2009] QCA 377, cited R v Hawken (1986) 27 A Crim R 32, cited R v Houghton (2002) 129 A Crim R 313; [2002] QCA 159, cited R v McKenzie, unreported, Muir J, Supreme Court of Queensland, Indictment No 480 of 1997, 18 March 1998, cited R v Murdoch and O'Brien, unreported, White J, Supreme Court of Queensland, Indictment No 92 of 2006, 25 May 2006, cited R v Neuherz, unreported, White J, Supreme Court of Queensland, Indictment No 92 of 2006, 17 March 2006, cited R v Tsiaras