R v Heke - [2019] QCA 93

SUPREME COURT OF QUEENSLAND

CITATION:

R v Heke [2019] QCA 93

PARTIES:

R
v
HEKE, Tamate Henry
(applicant)

FILE NO/S:

CA No 51 of 2018
SC No 1600 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 23 February 2018 (Applegarth J)

DELIVERED ON:

24 May 2019

DELIVERED AT:

Brisbane

HEARING DATE:

20 November 2018

JUDGES:

Fraser and Philippides JJA and Crow J

ORDER:

Application refused.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant was convicted of unlawful striking causing death – where the applicant delivered a blow to the deceased who fell backwards onto a road and was hit by a truck – where the applicant was sentenced to six and a half years’ imprisonment – where it was ordered, pursuant to s 314A(5) of the Criminal Code (Qld), that the applicant must not be released until he has served 80 per cent of that term – whether the applicant’s sentence was manifestly excessive

Corrective Services Act 2006 (Qld), s 182, s 184(2)
Criminal Code (Qld), s 23, s 300, s 314A, s 315A
Penalties and Sentences Act 1992 (Qld), s 9, s 161A, s 162
Safe Night Out Legislation Amendment Act 2014 (Qld)

R v Ali[2018] QCA 212, cited
R v Callow[2017] QCA 304, cited
R v Dwyer[2008] QCA 117, cited
R v Heather (unreported, 1178/2017, Supreme Court at Brisbane, 8 March 2018)
R v Mayot (unreported, 826/16, Supreme Court at Brisbane, 6 March 2017), cited
R v McConnell[2018] QCA 107, cited
R v Mischewski (unreported, 741/2017, Supreme Court at Brisbane, 18 December 2017), cited
R v Renata (unreported, 1663/2016, Supreme Court at Brisbane, 13 October 2017), cited
R v Renata; Ex parte Attorney-General (Qld)[2018] QCA 356, cited
R v Simeon[2000] QCA 470, cited
R v Skondin[2015] QCA 138, cited
R v Tientjes[1999] QCA 480, cited
R v Tran; Ex parte Attorney-General[2018] QCA 22, cited
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited

COUNSEL:

J J Allen QC, with T Zwoerner, for the applicant
M R Byrne QC for the respondent

SOLICITORS:

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

FRASER JA: I agree with the reasons for judgment of Crow J and the order proposed by his Honour.
PHILIPPIDES JA: I agree with the reasons of Crow J and the order proposed by his Honour.
CROW J: The applicant was charged with the manslaughter of Shane Martin Merrigan on 1 December 2015 and in the alternative with an offence against s 314A of the Criminal Code of unlawful striking causing the death of Mr Merrigan.
On 22 February 2018, the applicant was acquitted of manslaughter but convicted of unlawful striking causing death. The applicant was sentenced to six and…

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 Heke

Details

AGLC: R v Heke [2019] QCA 93
Case: [2019] QCA 93
Decision Date: 24 May 2019

CaseChat Overview and Summary

In the case of R v Heke, the applicant was convicted of unlawful striking causing death, after delivering a blow to the deceased who subsequently fell backwards onto a road and was hit by a truck. He was sentenced to six and a half years’ imprisonment, with the condition that he must serve 80 per cent of that term before being eligible for release. The applicant appealed against the severity of his sentence, arguing that it was manifestly excessive. The appeal raised questions about the appropriate level of punishment for the crime committed and whether the sentence imposed was disproportionate.

The court considered the principles of sentencing, particularly whether the sentence was manifestly excessive or inadequate. It examined the nature of the offence, the role of the applicant in the events leading to the death, and the appropriate range of sentences for such a crime. The court also took into account the need for general deterrence and the protection of society, as well as the principles of proportionality and parity in sentencing. After careful consideration, the court found that the sentence imposed was not manifestly excessive and was within the appropriate range for the offence committed.

Consequently, the court dismissed the applicant’s appeal against his sentence. The reasoning provided by the court underscored the importance of considering the specific circumstances of each case, the role of the offender, and the broader objectives of sentencing. The court upheld the original sentence, concluding that it was appropriate and not disproportionate to the offence. The final orders were that the application for appeal against sentence was refused.

Orders

Orders of the court

Application refused.

Background

Background to the litigation

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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 Heke [2019] QCA 93
PARTIES:	R v HEKE, Tamate Henry (applicant)
FILE NO/S:	CA No 51 of 2018 SC No 1600 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 23 February 2018 (Applegarth J)
DELIVERED ON:	24 May 2019
DELIVERED AT:	Brisbane
HEARING DATE:	20 November 2018
JUDGES:	Fraser and Philippides JJA and Crow J
ORDER:	Application refused.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant was convicted of unlawful striking causing death – where the applicant delivered a blow to the deceased who fell backwards onto a road and was hit by a truck – where the applicant was sentenced to six and a half years’ imprisonment – where it was ordered, pursuant to s 314A(5) of the Criminal Code (Qld), that the applicant must not be released until he has served 80 per cent of that term – whether the applicant’s sentence was manifestly excessive Corrective Services Act 2006 (Qld), s 182, s 184(2) Criminal Code (Qld), s 23, s 300, s 314A, s 315A Penalties and Sentences Act 1992 (Qld), s 9, s 161A, s 162 Safe Night Out Legislation Amendment Act 2014 (Qld) R v Ali[2018] QCA 212, cited R v Callow[2017] QCA 304, cited R v Dwyer[2008] QCA 117, cited R v Heather (unreported, 1178/2017, Supreme Court at Brisbane, 8 March 2018) R v Mayot (unreported, 826/16, Supreme Court at Brisbane, 6 March 2017), cited R v McConnell[2018] QCA 107, cited R v Mischewski (unreported, 741/2017, Supreme Court at Brisbane, 18 December 2017), cited R v Renata (unreported, 1663/2016, Supreme Court at Brisbane, 13 October 2017), cited R v Renata; Ex parte Attorney-General (Qld)[2018] QCA 356, cited R v Simeon[2000] QCA 470, cited R v Skondin[2015] QCA 138, cited R v Tientjes[1999] QCA 480, cited R v Tran; Ex parte Attorney-General[2018] QCA 22, cited Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited
COUNSEL:	J J Allen QC, with T Zwoerner, for the applicant M R Byrne QC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent