R v Neilson - [2011] QCA 369

SUPREME COURT OF QUEENSLAND

CITATION:

R v Neilson [2011] QCA 369

PARTIES:

R
v
NEILSON, Ronald Anthony
(applicant)

FILE NO/S:

CA No 116 of 2011
DC No 381 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

16 December 2011

DELIVERED AT:

Brisbane

HEARING DATE:

30 November 2011

JUDGES:

Muir JA, Margaret Wilson AJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Application for leave to appeal against sentence granted.

2.    Appeal against sentence allowed.

3.    Sentence varied by deleting the orders that the sentences are cumulative and fixing the parole eligibility date at 9 May 2015.

4.    The date the applicant is eligible for parole fixed at 5 May 2013.

5.    Pursuant to s 159A of the Penalties and Sentences Act 1992 it is declared that three days spent in pre-sentence custody between 6 May 2011 and 8 May 2011 is taken to be imprisonment already served under the sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after trial of grievous bodily harm and armed robbery, in company, with personal violence – where the applicant was sentenced to four years’ imprisonment for each offence with the sentences to be served cumulatively – where the applicant was 17 years old at the time of the offences and showed no remorse – whether sentence was manifestly excessive due to weight placed on the need for deterrence

Penalties and Sentences Act 1992 (Qld), s 9

R v Bryan; ex parte A-G (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, considered
R v Price[2006] QCA 180, considered
R v Timoti[2003] QCA 96, considered
R v Tomkins & Gunning [2001] QCA 68, considered

COUNSEL:

J J Allen, with J Lodziak, for the applicant
S P Vasta for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: I agree with the reasons of Mullins J and with the orders she proposes.

MARGARET WILSON AJA: I agree with the orders proposed by Mullins J and with her Honour’s reasons for judgment.

MULLINS J: The applicant was convicted after trial on 6 May 2011 of one count of grievous bodily harm and one count of armed robbery, in company, with personal violence. He was sentenced to four years’ imprisonment for each offence with the sentences to be served cumulatively and a parole eligibility date was set at 9 May 2015.

The applicant applies for leave to appeal against the sentences on the ground that they are manifestly excessive.

The circumstances of the offences

The offences were committed on 4 July 2009 when the applicant was 17 years six months old.

The two complainants for the offences were also 17 years old and were out with…

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 Neilson

Details

AGLC: R v Neilson [2011] QCA 369
Case: [2011] QCA 369
Decision Date: 16 December 2011

CaseChat Overview and Summary

In the case of R v Neilson, the applicant appealed against the sentence imposed on him following his conviction for grievous bodily harm and armed robbery, both committed in company with personal violence. The applicant, who was 17 years old at the time of the offences, received a sentence of four years' imprisonment for each offence, with the sentences to be served cumulatively. The applicant argued that the sentence was manifestly excessive, primarily due to the weight placed on the need for general deterrence. The applicant also argued that there were no exceptional circumstances that warranted a cumulative sentence, and that the sentence was inadequate due to the applicant's age at the time of the offence and his lack of remorse.

The court considered whether the sentence was manifestly excessive, taking into account the principles of sentencing and the need for general and specific deterrence. The court noted that the applicant's age at the time of the offence and his lack of remorse were relevant factors in determining the appropriate sentence. The court also considered the impact of the cumulative sentence on the applicant's prospects for rehabilitation and reintegration into society. The court concluded that the sentence was manifestly excessive due to the weight placed on the need for general deterrence, and that there were no exceptional circumstances that warranted a cumulative sentence.

As a result of the appeal, the court granted the application for leave to appeal against the sentence. The appeal against the sentence was allowed, and the sentence was varied by deleting the orders that the sentences are cumulative and fixing the parole eligibility date at 9 May 2015. The date the applicant is eligible for parole was fixed at 5 May 2013. Additionally, pursuant to s 159A of the Penalties and Sentences Act 1992, it was declared that three days spent in pre-sentence custody between 6 May 2011 and 8 May 2011 is taken to be imprisonment already served under the sentence.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal against sentence allowed.

3. Sentence varied by deleting the orders that the sentences are cumulative and fixing the parole eligibility date at 9 May 2015.

4. The date the applicant is eligible for parole fixed at 5 May 2013.

5. Pursuant to s 159A of the Penalties and Sentences Act 1992 it is declared that three days spent in pre-sentence custody between 6 May 2011 and 8 May 2011 is taken to be imprisonment already served under the sentence.

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 Neilson [2011] QCA 369
PARTIES:	R v NEILSON, Ronald Anthony (applicant)
FILE NO/S:	CA No 116 of 2011 DC No 381 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	16 December 2011
DELIVERED AT:	Brisbane
HEARING DATE:	30 November 2011
JUDGES:	Muir JA, Margaret Wilson AJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted. 2. Appeal against sentence allowed. 3. Sentence varied by deleting the orders that the sentences are cumulative and fixing the parole eligibility date at 9 May 2015. 4. The date the applicant is eligible for parole fixed at 5 May 2013. 5. Pursuant to s 159A of the Penalties and Sentences Act 1992 it is declared that three days spent in pre-sentence custody between 6 May 2011 and 8 May 2011 is taken to be imprisonment already served under the sentence.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after trial of grievous bodily harm and armed robbery, in company, with personal violence – where the applicant was sentenced to four years’ imprisonment for each offence with the sentences to be served cumulatively – where the applicant was 17 years old at the time of the offences and showed no remorse – whether sentence was manifestly excessive due to weight placed on the need for deterrence Penalties and Sentences Act 1992 (Qld), s 9 R v Bryan; ex parte A-G (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, considered R v Price[2006] QCA 180, considered R v Timoti[2003] QCA 96, considered R v Tomkins & Gunning [2001] QCA 68, considered
COUNSEL:	J J Allen, with J Lodziak, for the applicant S P Vasta for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent