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R v Hicks & Taylor

R v Hicks & Taylor

Case [2011] QCA 207 26 August 2011

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Hicks & Taylor [2011] QCA 207

PARTIES:

R
v
HICKS, Joshua Alexander
(applicant)

R
v
TAYLOR, Willie Michael
(applicant)

FILE NO/S:

CA No 255 of 2010
CA No 274 of 2010
SC No 152 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Applications

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

24 June 2011

JUDGES:

White JA and Margaret Wilson AJA and Mullins J
Judgment of the Court

ORDERS:

In CA No 255 of 2010:

1. Application for leave to appeal against sentence granted

2. Appeal against sentence allowed

3. Set aside the sentence imposed for the offence of manslaughter of ten years’ imprisonment and substitute a sentence of nine years’ imprisonment

4. The sentence imposed at first instance is otherwise confirmed

In CA No 274 of 2010:

1. Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE RECORDED ON PLEA OF GUILTY – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant Hicks pleaded guilty to one count of attempted armed robbery in company and one count of manslaughter – where sentencing judge made a finding that the applicant had been involved in a prior home invasion of the same residence where the offences were committed on the basis of a written statement made by a witness who resiled from that statement on a voir dire before the judge – whether judge applied s 132C Evidence Act 1977 (Qld) in making that finding

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE RECORDED ON PLEA OF GUILTY – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant Hicks pleaded guilty to one count of attempted armed robbery in company and one count of manslaughter – where the unlawful killing was committed in the course of the attempted armed robbery – where prosecution abandoned the circumstance of aggravation for the attempted armed robbery offence that the defendants were armed with an offensive weapon of a steering wheel lock – where sentencing judge did not act on the allegation that the applicant was armed with a steering wheel lock in sentencing for the attempted armed robbery – where judge took into account that the applicant was armed with a steering wheel lock in sentencing for the offence of manslaughter – whether judge erred in taking into account the circumstance of aggravation in sentencing for the offence of manslaughter

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE RECORDED ON PLEA OF GUILTY – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant Taylor pleaded guilty to manslaughter and attempted armed…

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 Hicks & Taylor

Details

AGLC: R v Hicks & Taylor [2011] QCA 207
Case: [2011] QCA 207
Decision Date: 26 August 2011

CaseChat Overview and Summary

The applicants, Hicks and Taylor, were convicted and sentenced in the District Court for offences related to a home invasion and the manslaughter of a person during the attempted armed robbery. Hicks pleaded guilty to attempted armed robbery in company and manslaughter, while Taylor pleaded guilty to manslaughter and attempted armed robbery in company. Both applicants sought to appeal against their sentences, with Hicks applying to have his sentence reduced and Taylor arguing that his sentence was manifestly excessive. The central legal issues in this appeal were whether the sentencing judge correctly applied the law in making findings about prior criminal conduct and whether the judge erred in considering certain aggravating factors in sentencing.

The court found that the sentencing judge did not correctly apply the law when making a finding that Hicks had been involved in a prior home invasion based on a witness statement that was later retracted. The court also determined that the judge erred in considering the aggravating factor that Hicks was armed with a steering wheel lock in sentencing for the manslaughter offence, as the prosecution had abandoned this factor for the attempted armed robbery offence. Regarding Taylor, the court concluded that while his responsibility for the crime was less than Hicks', the sentence was not manifestly excessive. The court noted that the sentence was structured to ensure parole eligibility was just short of the halfway mark, which was a mitigating factor.

The appeal against Hicks' sentence was allowed, and the sentence for manslaughter was reduced from ten years to nine years, while the sentence for attempted armed robbery remained unchanged. The court confirmed the rest of Hicks' sentence. In contrast, the appeal against Taylor's sentence was dismissed, and the original sentence was upheld. These decisions highlight the importance of correct legal application in sentencing and the need for appropriate consideration of all factors, including the plea of guilty.

Orders

Orders of the court

In CA No 255 of 2010:

1. Application for leave to appeal against sentence granted

2. Appeal against sentence allowed

3. Set aside the sentence imposed for the offence of manslaughter of ten years’ imprisonment and substitute a sentence of nine years’ imprisonment

4. The sentence imposed at first instance is otherwise confirmed

In CA No 274 of 2010:

1. Application for leave to appeal against sentence 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.

Citations

AGLC Citation

R v Hicks & Taylor [2011] QCA 207

Most Recent Citation

R v Welham & Martin [2012] QCA 103

Cases citing this decision · 12 of 12 shown

R v Armitage; R v Armitage; R v Dean
[2021] QCA 185 Para 1

…he purpose of obtaining information about stolen drugs. Mr Barker’s unlawful killing was a probable consequence of the execution of that plan. [97] [2011] QCA 207. [98] [2018] QCA 124.…
R v Armitage, Armitage and Dean
[2020] QSC 41

…9, applied R v Richardson [2010] QCA 216, cited R v T [1995] 2 Qd R 192, distinguished R v Taylor and Hicks [2011] QCA 207, distinguished R v WAW [2013] QCA 22, distinguished R v Wellham and Martin [2012] QCA 103, distinguished R v Wong [1995] 16 WAR 219, cited Thompson v R [2000] WASCA 186, cited…
R v Wales
[2019] QCA 64 Para 7

…o amelioration of the statutory eligibility for parole at the halfway mark) was substituted for the sentence imposed by the sentencing judge. [10][2011] QCA 207. [11][2000] QCA 278. [12](2002) 131 A Crim R 150.…
R v Geissler
[2019] QCA 63 Para 8

…was referred to sentencing decisions – R v De Salvo (2002) 127 A Crim R 229, R v Mooka [2007] QCA 36, R v Civic [2014] QCA 322, R v Hicks & Taylor [2011] QCA 207 and R v Lacey; Ex parte Attorney General (Qld) (2009) 197 A Crim R 399– and remarked that none were entirely on point, but Lacey perhaps was the most h…
R v Sutton
[2018] QCA 318 Para 17

…ion of the time to be served below the common sentencing practice of one third usually referable to a plea of guilty.[7] [7] R v Hicks & Taylor [2011] QCA 207 at [34]; R v Ungvari [2010] QCA 134 at [30].…
R v Crawford, Patea and Patea
[2018] QSC 122 Para 13

…Boddice in the case of Bliss and Stockman. In your case, Mr Patea, I have had regard to the decisions of the Court of Appeal in R v Hicks and Taylor [2011] QCA 207 and R v Lincoln; R v Kister; R v Renwick [2017] QCA 37, as well as to the sentences imposed by Justice Boddice on Bliss and Stockman.…
Reid v Commissioner of Police
[2018] QDC 83 Para 1

…of the sentence, or by reducing the head sentence, or by both reducing the head sentence and allowing for early release.[13] [13] R v Hicks & Taylor [2011] QCA 207 at [34].…
R v Lincoln; R v Kister; R v Renwick
[2017] QCA 37 Para 18

…ity.[23] [17]Transcript of Proceedings, 31 May 2016, AB 25. [18][2008] QCA 226. [19][2004] QCA 116. [20][2007] 2 Qd R 87; [2006] QCA 365. [21][2011] QCA 207. [22][2012] QCA 103. [23]Transcript of Proceedings, 31 May 2016, AB 35 – 40.…
R v Harrison
[2015] QCA 210

…nsion of the sentence, or by reducing the head sentence, or by both reducing the head sentence and allowing for early release: see R v Hicks & Taylor [2011] QCA 207, [34]. The judge made it clear he did not consider early parole eligibility was appropriate because of the applicant’s propensity to reoffend. But th…
R v WAW
[2013] QCA 22 Para 1

…s the sentence was 10 years and in Hicks , nine years. The factual circumstances of both are set out in R v Welham & Martin . [15][2000] QCA 278. [16][2011] QCA 207.…
WILLIE MICHAEL TAYLOR and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2012] AATA 369 Para 6

…along with the others. He was not armed during these offences. His motive however for becoming involved was not established (see R v Hicks and Taylor [2011] QCA 207 at [19]).…
R v Welham & Martin
[2012] QCA 103 Para 1

…nning of the robbery, there was nothing like the pre-planning of violence which characterised Welham’s participation in the present case. [11][2011] QCA 207.…

View all 12 citing cases →

Cases cited in this decision · 8 of 8 shown

R v Ungvari
[2010] QCA 134 Para 1

…end it partially. If he or she decides to fix an early parole eligibility date, it need not necessarily be set at the one-third mark. [5] R v Ungvari [2010] QCA 134, [30]; R v Mayall [2008] QCA 202, [29].…
R v Mayall
[2008] QCA 202 Para 1

…cides to fix an early parole eligibility date, it need not necessarily be set at the one-third mark. [5] R v Ungvari [2010] QCA 134, [30]; R v Mayall [2008] QCA 202, [29].…
R v Kitson
[2008] QCA 86 Para 1

…the term of imprisonment is more than three years, and parole eligibility is set beyond the half-way mark, reasons should be given. [6] R v Kitson [2008] QCA 86 at [18].…
R v McDougall and Collas
[2006] QCA 365 Para 1

…inst Collas was set aside. Thus he would have to serve half the head sentence before becoming eligible to apply for parole. [10][2007] 2 Qd R 87; [2006] QCA 365.…
R v Georgiou; R v Georgiou; ex parte
[2002] QCA 206 Para 1

…d, in carrying out their common intention to break into the pharmacy and steal drugs. [9] R v Georgiou & Ors; R v Georgiou & Anor; ex parte A-G (Qld) [2002] QCA 206.…
R v Schuurs
[2000] QCA 278 Para 1

…nd the car and instructed one of the co-offenders to shoot the deceased in the leg. The co-offender shot the deceased in the chest and killed him. [8][2000] QCA 278.…
R v Booth
[1999] QCA 100 Para 1

…otherwise have been. [7] Penalties and Sentences Act 1992 (Qld) s 156A subsections (1)(a)(i) and (b)(ii), (2). See also R v Booth [2001] 2 Qd R 393; [1999] QCA 100. There was no submission that the accumulation of the sentences made the overall period of imprisonment excessive.…
R v D
[1995] QCA 329 Para 1

…unt on a sentence that would establish a separate offence of which the person to be sentenced had not been convicted. [11][1996] 1 Qd R 363, 403-404; [1995] QCA 329.…

Legislation cited in this decision · 3

Penalties and Sentences Act 1992 (Qld)
15, 156A, 160C 4 mentions (from Para 1)
Corrective Services Act 2006 (Qld)
182, 184, 209 3 mentions (from Para 1)
Evidence Act 1977 (Qld)
132C 3 mentions (from Para 1)

CITATION:	R v Hicks & Taylor [2011] QCA 207
PARTIES:	R v HICKS, Joshua Alexander (applicant) R v TAYLOR, Willie Michael (applicant)
FILE NO/S:	CA No 255 of 2010 CA No 274 of 2010 SC No 152 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Applications
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	26 August 2011
DELIVERED AT:	Brisbane
HEARING DATE:	24 June 2011
JUDGES:	White JA and Margaret Wilson AJA and Mullins J Judgment of the Court
ORDERS:	In CA No 255 of 2010: 1. Application for leave to appeal against sentence granted 2. Appeal against sentence allowed 3. Set aside the sentence imposed for the offence of manslaughter of ten years’ imprisonment and substitute a sentence of nine years’ imprisonment 4. The sentence imposed at first instance is otherwise confirmed In CA No 274 of 2010: 1. Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE RECORDED ON PLEA OF GUILTY – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant Hicks pleaded guilty to one count of attempted armed robbery in company and one count of manslaughter – where sentencing judge made a finding that the applicant had been involved in a prior home invasion of the same residence where the offences were committed on the basis of a written statement made by a witness who resiled from that statement on a voir dire before the judge – whether judge applied s 132C Evidence Act 1977 (Qld) in making that finding CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE RECORDED ON PLEA OF GUILTY – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant Hicks pleaded guilty to one count of attempted armed robbery in company and one count of manslaughter – where the unlawful killing was committed in the course of the attempted armed robbery – where prosecution abandoned the circumstance of aggravation for the attempted armed robbery offence that the defendants were armed with an offensive weapon of a steering wheel lock – where sentencing judge did not act on the allegation that the applicant was armed with a steering wheel lock in sentencing for the attempted armed robbery – where judge took into account that the applicant was armed with a steering wheel lock in sentencing for the offence of manslaughter – whether judge erred in taking into account the circumstance of aggravation in sentencing for the offence of manslaughter CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE RECORDED ON PLEA OF GUILTY – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant Taylor pleaded guilty to manslaughter and attempted armed…