R v Neumann; Ex parte Attorney-General (Qld)

SUPREME COURT OF QUEENSLAND

CITATION:

R v Neumann; ex parte A-G (Qld) [2005] QCA 362

PARTIES:

R
v
NEUMANN, Mark Anthony
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 186 of 2005
SC No 87 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

30 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

23 August 2005

JUDGES:

McPherson and Jerrard JJA and Fryberg J
Separate reasons for judgment of each member of the Court, McPherson JA and Fryberg J concurring as to the order made, Jerrard JA dissenting

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Miscellaneous matters – Abnormal mental condition – Protection of community – Relevance and affect on sentence imposed – Whether sentence below was manifestly inadequate

Mental Health Act 2000 (Qld)

R v Channon (1978) 20 ALR 1, noted
R v Chivers [1993] 1 Qd R 432, referred to
R v Dunn [1994] QCA 147; CA No 29 of 1994, 13 May 1994, referred to
R v Elliot [2000] QCA 267; CA No 38 of 2000, 11 July 2000, referred to
R v Engert (1995) 84 A Crim R 67, cited

COUNSEL:

M J Copley for the appellant
B G Devereaux for the respondent

SOLICITORS:

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

1. McPHERSON JA:  I have read and agree with the reasons of Fryberg J for dismissing this sentence appeal by the Attorney-General. Without repeating all that his Honour has said in those reasons, I agree that there was no evidence on sentencing that further violent offending by the respondent was likely to occur other than the evidence of his rapidly degenerating mental condition.

1. At the time of sentencing, the respondent was and is now subject to an involuntary treatment order, with the consequence that he will not be released at the expiration of his sentence unless his mental condition has improved dramatically in the meantime.

1. I would dismiss the appeal.

1. JERRARD JA: In this appeal I have read the reasons for judgment of Fryberg J, and while I agree with his analysis of the law, I respectfully disagree with the result of its application in this case.  The judgment of the Mental Health Court, which was an exhibit put before the learned sentencing judge, reveals that Mr Neumann used a bayonet to smash the window of the house in Edmonton on 19 October 2002, from which he stole the .22 rifle.  He used that rifle later that day in an unsuccessful attempt to hold up a vehicle.  Later he hid the rifle, and returned to Cairns the next day and then went south, first to Gordonvale and then the picnic spot at the Little Mulgrave River where he apparently intended to abandon his vehicle and take another.  He was carrying the bayonet, and he…