SUPREME COURT OF QUEENSLAND
CITATION:
R v Liddy; Ex parte Attorney-General (Qld) [2018] QCA 254
PARTIES:
R
v
LIDDY, Patrick Michael John
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)FILE NO/S:
CA No 321 of 2017
SC No 26 of 2017DIVISION:
Court of Appeal
PROCEEDING:
Sentence Appeal by Attorney-General (Qld)
ORIGINATING COURT:
Supreme Court at Townsville – Date of Sentence: 14 December 2017 (North J)
DELIVERED ON:
8 October 2018
DELIVERED AT:
Brisbane
HEARING DATE:
31 May 2018
JUDGES:
Morrison and Philippides JJA and Henry J
ORDER:
The appellant’s appeal against sentence is dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – PRINCIPLES APPLIED BY APPELLATE COURTS TO CROWN APPEALS – where the respondent was convicted of manslaughter (having been acquitted of the charge of murder) – where the respondent was sentenced to nine and a half years imprisonment, with a declaration as to 756 days of presentence custody being time already served under the sentence – where no order was made as to parole eligibility so that the respondent was required to serve 50 per cent of the sentence before eligibility for parole – where the respondent was engaged in a fistfight which he left to get a knife – where three stab wounds were inflicted – where the fatal blow was inflicted with force – where there was no intention to kill or cause grievous bodily harm – where the respondent was 26 years of age at the date of offending, had surrendered to police one day after the incident, and had a minor criminal history of no relevance – where the Attorney-General (Qld) appeals against the sentence imposed and submitted that the sentence should be increased to 10 years or more and a Serious Violent Offence declaration should be made – whether the sentencing judge erred in failing to declare the offence to be a Serious Violent Offence – whether the sentence imposed was manifestly inadequate and whether there was any misapplication of principle or fact to warrant this Court re-exercising the sentencing task
Penalties and Sentences Act 1992 (Qld), s 161B
Pickering v The Queen (2017) 260 CLR 151; [2017] HCA 17, considered
R v Arnoutovic[2001] QCA 89, considered
R v Civic[2014] QCA 322, considered
R v DeSalvo (2002) 127 A Crim R 228; [2002] QCA 63, distinguished
R v Hedlefs[2017] QCA 199, distinguished
R v Lyon[2006] QCA 146, considered
R v Marshall [1995] 1 Qd R 673; [1994] QCA 161, considered
R v McDougall & Collas [2007] 2 Qd R 87; [2006] QCA 365, applied
R v Mooka[2007] QCA 36, distinguished
R v Murray[2012] QCA 68, considered
R v Pham (2015) 256 CLR 550; [2015] HCA 39, considered
R v Schubring; Ex parte Attorney-General (Qld) [2005] 1 Qd R 515; [2004] QCA 418, distinguished
R v Sebo; Ex parte Attorney-General (Qld) (2007) 179 A Crim…
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- AGLC
- R v Liddy; Ex parte [2018] QCA 254
- Case
- [2018] QCA 254
- Decision Date
CaseChat Overview and Summary
The court examined the principles guiding appellate intervention in sentencing, emphasizing that it should only intervene if there has been a misapplication of principle. The court considered the broad range of possible sentences for manslaughter, as highlighted in Pickering v The Queen, and noted that the sentencing judge's discretion was broad. The court also examined the case of DeSalvo, where a similar sentence was moderated based on factors like remorse and an offer to plead guilty. The court observed that while DeSalvo exhibited a greater level of remorse, this did not necessarily warrant a different sentence in this case. The court concluded that the original sentence of nine and a half years was within the appropriate range and did not constitute a misapplication of principle or fact.
The court dismissed the appeal against the sentence, finding no basis for increasing the sentence or declaring it a Serious Violent Offence. The sentencing judge's decision was upheld, and no further action was required by the Court regarding the sentence.
Orders
Orders of the court
The appellant’s appeal against sentence is dismissed.
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
The respondent’s statements to the deceased followed a protracted physical altercation during which the deceased caused him injuries. He was intoxicated and those statements do not carry with them the significance that might be attached to statements made by sober persons after premeditated conduct. The following day the respondent surrendered to police.Consideration As the appellant acknowledged, given the many different ways in which the offence of manslaughter can be committed, it is an offence susceptible to a wide “range” of sentences, a proposition recently repeated in Pickering v The Queen.[19] As stated in R v Pham:[20]“Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”[19](2017) 260 CLR 151 at [2].[20](2015) 256 CLR 550 at [28]. The decision on which the appellant placed greatest reliance was that of DeSalvo. In that case, a sentence of eight years imprisonment with a SVO declaration was set aside on appeal and a sentence of nine and half years without a SVO declaration was imposed. The sentencing judge made specific reference to DeSalvo, quoting the following passage from the judgment of McPherson JA, with whom Williams JA agreed:[21]“For a homicide resulting from a deliberate act like the stabbing in this case, the appropriate head sentence falls properly within the range of 10 to 12 years imprisonment. Some discounting must, however, be carried out to reflect the applicant’s remorse and his offer before trial to plead guilty to the offence of manslaughter of which he was ultimately convicted at trial. All matters considered, I would impose a sentence of imprisonment for nine years.”[21](2002) 127 A Crim R 229 at [11]. In respect of the nine year sentence without a SVO declaration imposed on appeal, McPherson JA observed that there was nothing to distinguish the offence from the many others of the same kind involving the use of weapons and violence.[22] The appellant argued that the moderation of the sentence to one of nine years without a SVO declaration was to be understood in the context that the offer to plead guilty was one which was in fact carried out at trial (albeit not accepted by the prosecution in discharge of the indictment), although that fact may not be readily apparent in the judgment.[23] The appellant argued that once that was understood, there was no discernible reason in the present matter to have diverted from the range stated by McPherson JA of 10 to 12 years. A further distinguishing matter was said to be that DeSalvo exhibited a greater level of remorse than the respondent.[22](2002) 127 A Crim R 229 at [9].[23]Affidavit evidence tendered confirmed that the plea was entered at trial.