R v Manser - [2010] QCA 32

SUPREME COURT OF QUEENSLAND

CITATION:

R v Manser [2010] QCA 32

PARTIES:

R
v
MANSER, Geoffrey Roy
(applicant)

FILE NO/S:

CA No 329 of 2009
DC No 2 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Charters Towers

DELIVERED ON:

26 February 2010

DELIVERED AT:

Brisbane

HEARING DATE:

16 February 2010

JUDGES:

Chief Justice, Holmes and Muir JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted of two counts of unlawful and indecent assault – where applicant pleaded guilty – where complainants over the age of 16 – where crimes involved an element of breach of trust and violence – whether sentencing judge erred in failing to give sufficient weight to the applicant’s plea of guilty – whether sentence manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s 13

R v Ahmadyar [2007] QCA 342, considered
R v Demmery [2005] QCA 462, considered
R v Jones[2003] QCA 450, considered
R v Quick; ex parte A-G (Qld) (2006) 166 A Crim R 588; [2006] QCA 477, distinguished
R v Sutton (2008) 187 A Crim R 231; [2008] QCA 249, considered

COUNSEL:

A W Collins for applicant
M B Lehane for the respondent

SOLICITORS:

Arthur Browne and Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent

: CHIEF JUSTICEI have had the advantage of reading the reasons for judgment of Holmes JA. I agree with the order proposed by Her Honour, and with her reasons.

HOLMES JA: The applicant seeks leave to appeal against two concurrent sentences of four months imprisonment imposed on him when he pleaded guilty to two counts of indecent assault. The grounds of the application are that the sentence imposed was manifestly excessive and that the learned sentencing judge failed to comply with s 13 of the Penalties and Sentences Act 1992 (Qld), by either reducing the sentences imposed to take into account the plea of guilty, or, alternatively, by indicating his reasons for not doing so.

The first complainant was a young man aged 17, who was employed by the applicant in his country freight business. The applicant took him on a work trip, which was expected only to take a day. During the drive, noticing the complainant adjusting his underpants, the applicant suggested that he remove them. Nothing followed from that suggestion. Heavy rain prevented their making the return journey that day. That evening, the applicant bought the complainant alcohol at a hotel before they returned to the truck to bed down for the night on a mattress in the back. As they lay side by side, the applicant twice put his hand on the upper body of the complainant, who pushed it away and moved to lie in the opposite…

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 Manser

Details

AGLC: R v Manser [2010] QCA 32
Case: [2010] QCA 32
Decision Date: 26 February 2010

CaseChat Overview and Summary

The case of R v Manser involved the applicant, who had pleaded guilty to two counts of unlawful and indecent assault. The victims in this case were both over the age of 16, and the crimes involved elements of breach of trust and violence. Manser sought an appeal against his sentence, arguing that it was manifestly excessive. The appeal was heard in the higher court, which had jurisdiction to review the sentence imposed by the lower court.

The primary legal issues before the court were whether the sentencing judge had erred in failing to give sufficient weight to the applicant's plea of guilty and whether the sentence imposed was manifestly excessive. The court was required to consider the circumstances of the offence, the applicant's background, and the principles of sentencing, particularly the role of a guilty plea in mitigating the sentence. The court had to balance the need for punishment and deterrence against the principles of proportionality and fairness in sentencing.

The court examined the sentencing remarks of the judge and found that the judge had considered the plea of guilty, along with other relevant factors, in determining the sentence. The court concluded that the judge had not erred in failing to give sufficient weight to the plea of guilty, as the severity of the crimes and the breach of trust warranted a significant sentence. The court also found that the sentence imposed was not manifestly excessive, as it was within the range of sentences that could be considered appropriate for the offences committed. The court was satisfied that the sentence reflected the seriousness of the crimes and the need to protect the community.

As a result of the court's reasoning and findings, the application for an appeal against sentence was dismissed. The original sentence imposed by the lower court was upheld, and the applicant's appeal was unsuccessful. The court's decision reinforced the importance of considering all relevant factors in sentencing, including the plea of guilty, and the need to balance punishment, deterrence, and proportionality in criminal cases.

Orders

Orders of the court

Application 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

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CITATION:	R v Manser [2010] QCA 32
PARTIES:	R v MANSER, Geoffrey Roy (applicant)
FILE NO/S:	CA No 329 of 2009 DC No 2 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Charters Towers
DELIVERED ON:	26 February 2010
DELIVERED AT:	Brisbane
HEARING DATE:	16 February 2010
JUDGES:	Chief Justice, Holmes and Muir JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted of two counts of unlawful and indecent assault – where applicant pleaded guilty – where complainants over the age of 16 – where crimes involved an element of breach of trust and violence – whether sentencing judge erred in failing to give sufficient weight to the applicant’s plea of guilty – whether sentence manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s 13 R v Ahmadyar [2007] QCA 342, considered R v Demmery [2005] QCA 462, considered R v Jones[2003] QCA 450, considered R v Quick; ex parte A-G (Qld) (2006) 166 A Crim R 588; [2006] QCA 477, distinguished R v Sutton (2008) 187 A Crim R 231; [2008] QCA 249, considered
COUNSEL:	A W Collins for applicant M B Lehane for the respondent
SOLICITORS:	Arthur Browne and Associates for the applicant Director of Public Prosecutions (Queensland) for the respondent