R v Kirke

[2020] QCA 53

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kirke [2020] QCA 53

PARTIES:

R
v
KIRKE, Alexander Craig Wharton
(applicant)

FILE NO/S:

CA No 172 of 2019
SC No 750 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 7 June 2019 (Davis J)

DELIVERED ON:

27 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2020

JUDGES:

Morrison JA, Bond and Callaghan JJ

ORDER:

Application for 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 the applicant pleaded guilty to five counts including one count of manslaughter – where the applicant was party to a violent home invasion after which the applicant’s gross negligence and reckless conduct unlawfully killed a rescuer – where the applicant was 17 at the time of the offence – where the primary judge imposed a sentence that did not require the mandatory declaration of a serious violent offence – whether the primary judge gave enough weight to the applicant’s mitigating factors

Penalties and Sentences Act 1992 (Qld), s 161B

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited

COUNSEL:

C F C Wilson for the applicant
C W Heaton QC, with C M Cook, for the respondent

SOLICITORS:

Guest Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. MORRISON JA:  I have read the reasons of Bond J and agree with those reasons and the order his Honour proposes.

2. BOND J:  On 31 May 2019 the applicant was convicted on his own pleas of guilty of the following offences:

   (a)Attempted armed robbery in company (count 1 on the indictment);

   (b)Assault occasioning bodily harm while armed and in company (count 2 on the indictment);

   (c)Attempted burglary by breaking in the night while armed and in company with property damage (count 3 on the indictment);

   (d)Assault occasioning bodily harm while armed and in company (count 4 on the indictment); and

   (e)Manslaughter (count 5 on the indictment).

3. On 7 June 2019, the primary judge sentenced the applicant to 9 years imprisonment in respect of count 5 and to 2 years imprisonment on each of counts 1 to 4.  All terms of imprisonment were to be served concurrently.  A parole eligibility date was fixed at 9 July 2022, after the applicant had served 5½ years of imprisonment (or a little over 60% of the full time term).  The primary judge declared that 879 days spent in pre-sentence custody between 9 January 2017 and 6 June 2019 was to be regarded as time served under the sentence.

4. The applicant seeks leave to appeal against the sentence imposed on him.  The applicant contends this court should set aside the sentence below; exercise the sentencing discretion afresh; and conclude that a sentence of 9 years imprisonment with parole eligibility after 3 years was appropriate in all of the circumstances.

5. This is not a…