SUPREME COURT OF QUEENSLAND
CITATION:
R v Murray [2012] QCA 68
PARTIES:
R
v
MURRAY, Allen James
(applicant)FILE NO/S:
CA No 149 of 2011
SC No 596 of 2010DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
27 March 2012
DELIVERED AT:
Brisbane
HEARING DATE:
9 March 2012
JUDGES:
Fraser JA, Margaret Wilson AJA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDERS:
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 not guilty to one charge of murder – where the applicant was found guilty of manslaughter – where, although the applicant intended to kill the deceased, he was only criminally responsible for manslaughter because of provocation – where the applicant was sentenced to nine years imprisonment – where there was a declaration that the applicant had been convicted of a serious violent offence – where the applicant did not challenge the imposition of a term of nine years – whether the serious violent offence declaration made the sentence manifestly excessive – whether the sentence was manifestly excessive in all the circumstances
CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – SERIOUS OR VIOLENT OFFENDERS – where the applicant was sentenced to nine years imprisonment with a serious violent offence declaration – where the applicant did not challenge the imposition of a term of nine years imprisonment, but contended that the serious violent offence declaration made the sentence manifestly excessive – where the applicant contended that the sentencing judge placed too little weight on mitigating factors – whether the serious violent offence declaration was an improper exercise of the sentencing judge’s discretion – whether the sentencing judge gave proper consideration to mitigating factors
Corrective Services Act 2006 (Qld), s 182, s 184
Criminal Code 1899 (Qld), s 304
Penalties and Sentences Act 1992 (Qld), s 161BR v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited
COUNSEL:
A J Kimmins for the applicant
B J Power for the respondentSOLICITORS:
Potts Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent
FRASER JA: I agree with the reasons for judgment of Margaret Wilson AJA and the order proposed by her Honour.
MARGARET WILSON AJA: On 22 May 2009 the applicant killed Graeme William Hughes. He was charged with murder, to which he pleaded not guilty. He was tried in the Supreme Court of Queensland, and found not guilty of murder, but guilty of manslaughter.
Provocation was a live issue at the trial. He was sentenced on the basis that although he had intended to kill the deceased, he was criminally responsible only for manslaughter because of provocation: Criminal Code 1899 (Qld) s 304.
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- R v Murray [2012] QCA 68
- Case
- [2012] QCA 68
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the serious violent offence declaration rendered the sentence manifestly excessive. Additionally, the court had to determine if the sentencing judge had given proper consideration to the mitigating factors presented by the appellant. The appellant contended that the declaration, which significantly impacts the offender's post-release conditions and rehabilitation opportunities, was an improper exercise of the sentencing judge's discretion and exacerbated the severity of the sentence.
The court held that the serious violent offence declaration did not make the sentence manifestly excessive. It observed that the appellant did not challenge the nine-year imprisonment term directly but only the ancillary declaration. The court found that the appellant's argument regarding the sentencing judge's consideration of mitigating factors was not sufficiently compelling to warrant an appeal against the sentence. The court concluded that the sentencing judge had appropriately balanced the gravity of the offence with the mitigating factors, and the declaration did not render the sentence manifestly disproportionate.
Accordingly, the court refused the application for leave to appeal against the sentence. The decision underscored the court's respect for the trial judge's discretion in sentencing and the importance of proportionality in criminal sentencing.
Orders
Orders of the court
Application for leave to appeal against sentence refused
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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