R v NQ

Case [2013] QCA 402 20 December 2013

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SUPREME COURT OF QUEENSLAND

CITATION:

R v NQ [2013] QCA 402

PARTIES:

R
v
NQ
(applicant)

FILE NO/S:

CA No 58 of 2013
SC No 626 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

18 October 2013

JUDGES:

Margaret McMurdo P, Morrison JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty in December 2012 to manslaughter (count 1), and in May 2009 to improperly interfering with a corpse (count 2) – where the applicant was sentenced to nine years and nine months imprisonment on count 1 and that conviction was declared to be a conviction for a serious violent offence – where the applicant was sentenced to two years concurrent imprisonment on count 2 – where the applicant contends that the learned sentencing judge erred by not stating that account was taken of the plea of guilty, as required by s 13(3) of the Penalties and Sentences Act 1992 (Qld) – where the primary judge directly referred to the applicant’s pleas of guilty but did not use the precise terms of s 13(3) – whether the primary judge complied with s 13(3) of the Penalties and Sentences Act

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the statement of facts tendered by consent at sentence referred to statements made by the applicant in his police interview on 30 October 2009, which had previously been ruled inadmissible – where the applicant entered free and informed pleas of guilty prior to sentence – where, at sentence, the applicant was represented by counsel instructed by solicitors – where the statement of facts was tendered by consent and the applicant’s counsel confirmed that it was not disputed and was the truth – whether the learned sentencing judge erred in receiving or acting on the statement of facts insofar as it referred to the applicant’s statements to police on 30 October 2009

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where a co-offender of the applicant was sentenced to nine years imprisonment for the offence of manslaughter and one year concurrent imprisonment for the offence of interfering with a corpse – where, but for the co-offender’s cooperation, she would have been sentenced to 12 years imprisonment – where the sentencing court exercised its discretion under s 161B(3) not to make a serious violent offence declaration in relation to the co-offender’s conviction for manslaughter – where the applicant carried out an extended violent attack upon the deceased with a baseball bat, while the co-offender led the deceased to that…

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 NQ

Details

AGLC: R v NQ [2013] QCA 402
Case: [2013] QCA 402
Decision Date: 20 December 2013

CaseChat Overview and Summary

In this case, the applicant appealed against his sentence, arguing that the learned sentencing judge had erred in several respects. The applicant had pleaded guilty to manslaughter and improperly interfering with a corpse, and was sentenced to nine years and nine months imprisonment for the manslaughter and two years concurrent imprisonment for the corpse interference. The applicant argued that the sentencing judge had not properly acknowledged his plea of guilty, that the judge had erred in considering an inadmissible statement, that the parity principle had not been correctly applied, and that the sentence was manifestly excessive. The court considered these arguments in turn.

The court found that while the sentencing judge had not used the precise terms of s 13(3) of the Penalties and Sentences Act 1992 (Qld), he had directly referred to the applicant’s pleas of guilty and had considered them in determining the sentence. The court found that the sentencing judge had not erred in this respect. The court also found that there had been no error in the sentencing judge considering the statement of facts, as the applicant’s counsel had confirmed that it was not disputed and was the truth. The court found that the sentencing judge had correctly applied the parity principle, taking into account the co-offender’s cooperation with authorities. Finally, the court found that the sentence was not manifestly excessive, given the premeditated and violent nature of the crime, the applicant’s criminal history, and the fact that the applicant had cooperated with police.

The court dismissed the appeal against sentence, finding that there had been no error on the part of the sentencing judge. The application for leave to appeal against sentence was refused.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v NQ [2013] QCA 402

Most Recent Citation

R v OS [2016] QCA 278

Cases citing this decision · 8 of 8 shown

R v TBD
[2024] QCA 182 Para 17

…nce to be drawn is that the sentencing remarks contained a statement in open court that the judge had taken account of the pleas. [41] R v NQ [2013] QCA 402, [7]. [42]Ibid, [58]. [43]Ibid, [58].…
R v Campbell
[2022] QCA 135 Para 7

…re-sentence custody. It was submitted that:[32] [28][2018] QCA 106. [29] R v Armitage; R v Armitage; R v Dean [2021] QCA 185. [30][2017] QCA 258. [31][2013] QCA 402. [32]Applicant’s outline paragraphs 13.1- 13.5. (a) NT provides a succinct overview of the general position regarding pre-sentence custody that canno…
R v Armitage; R v Armitage; R v Dean
[2021] QCA 185 Para 3

…en part of the notional 12 year sentence, the applicant would have been eligible to apply for parole after serving 80 per cent of it.”[35] [32] [2013] QCA 402. [33] [2018] QCA 277. [34] [2017] QCA 258. [35] [2013] QCA 402, [16].…
R v Whitehead
[2020] QCA 215 Para 1

…1] [19]Penalties and Sentences Act 1992 (Qld), s 13(3). [20]Penalties and Sentences Act 1992 (Qld), s 13(5). [21] R v Sonter [2008] QCA 292; R v NQ [2013] QCA 402.…
R v Armitage, Armitage and Dean
[2020] QSC 41

…Kister; and R v Renwick [2017] QCA 37, distinguished R v McDougall; R v Collas [2007] Qd R 87, cited R v NQ [2013] QCA 402, distinguished R v Richards [2017] QCA 299, applied R v Richardson [2010] QCA 216, cited R v T [1995] 2 Qd R 192, distinguished R v Taylor and Hicks [2011] QCA 207, distinguished R v WAW [201…
Williamson v The Commissioner of Police
[2019] QDC 56 Para 1

…should be allowed and the appellant resentenced. [33] R v Mallon (QCA 480 of 1996, 21 March 1997, unreported); R v Safi [2015] QCA 13 at [16]; R v NQ [2013] QCA 402…
R v Collins
[2018] QCA 277 Para 5

…months and 10 days. That would effectively mean a fulltime release date of 26 June 2021, 20 days short of seven years from the date of sentence. [115][2013] QCA 402. [116]The actual period was 1,040 days, but that figure should be treated as 80 per cent of the period to actually allow, because had it been part of…
R v Os
[2016] QCA 278 Para 2

…oductive than his. These considerations provided very sound reasons for sentencing the female co-offender to a noticeably lesser sentence.” [21][2013] QCA 402 at [13].…

View all 8 citing cases →

Cases cited in this decision · 14 of 14 shown

R v WAW
[2013] QCA 22 Para 1

…nts of 29 May 2009. Finally, on 6 September 2012 she provided a formal statement implicating both the male co-accused and the applicant. [17] R v WAW [2013] QCA 22, at [6].…
R v Naylor; ex parte
[2012] QCA 116 Para 1

…as contrary to s 10 Criminal Law Amendment Act . [4]Unreported, Supreme Court of Queensland, Dick AJ, Indictment No 505 of 2011, 28 November 2011. [5][2012] QCA 116.…
R v Welham & Martin
[2012] QCA 103 Para 1

…& Martin was 11 years imprisonment. In each case the Court of Appeal upheld the terms. [75] R v Jervis [1993] 1 Qd R 643. [76] R v Welham & Martin [2012] QCA 103. [77] R v Jervis (supra). [78]As in R v Welham & Martin (supra).…
R v Dwyer
[2008] QCA 117

…ry [2006] QCA 203, considered R v Dwyer [2008] QCA 117, cited R v Ianculescu [2000] 2 Qd R 521; [1999] QCA 439, cited R v Jervis [1993] 1 Qd R 643, considered R v Laracy [2007] 180 A Crim R 19; [2007] VSC 19, cited R v Liddle [2006] QCA 45, cited R v Mallon [1997] QCA 58, cited R v Mardlin [2004] WASC 73, cited R…
R v Laracy
[2007] VSC 19 Para 1

…case a different result was reached on the facts. [46] Pascoe v Little (1978) 24 ACTR 21 at p 23; R v Mardlin [2004] WASC 73 at [49]; and R v Laracy [2007] VSC 19 at [109]. [47] R v Plotzki [1972] Qd R 379 at 384-385.…
R v Corry
[2006] QCA 203 Para 1

…nced before the introduction of Pt 9A Penalties and Sentences Act , her sentence was effectively one of 14 years and eight months imprisonment. [11][2006] QCA 203, [25]. [12][2002] QCA 174. [13][1993] 1 Qd R 643, 656-657.…
R v Liddle
[2006] QCA 45 Para 1

…more closely, since it will not clearly appear that the plea has, in fact, been taken into account.[49] [49] R v Mallon [1997] QCA 58; R v Liddle [2006] QCA 45 at [18].…
R v Mardlin
[2004] WASC 73 Para 1

…and in R v Plotzki ,[47] though in that case a different result was reached on the facts. [46] Pascoe v Little (1978) 24 ACTR 21 at p 23; R v Mardlin [2004] WASC 73 at [49]; and R v Laracy [2007] VSC 19 at [109]. [47] R v Plotzki [1972] Qd R 379 at 384-385.…
R v Nagy
[2003] QCA 175

…SC 73, cited R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited R v NP; Ex parte Attorney-General (Qld) [2013] 1 Qd R 368; [2012] QCA 116, considered R v N , unreported, Supreme Court of Queensland, Indictment No 505 of 2011, 28 November 2011, considered R v Plotzki [1972] Qd R 379, cited R v Smith [1959] 2 QB 35;…
R v Bates; R v Baker
[2002] QCA 174 Para 1

…on of Pt 9A Penalties and Sentences Act , her sentence was effectively one of 14 years and eight months imprisonment. [11][2006] QCA 203, [25]. [12][2002] QCA 174. [13][1993] 1 Qd R 643, 656-657.…
R v Webber
[2000] QCA 316

…red R v Webber (2000) 114 A Crim R 381; [2000] QCA 316, cited R v Welham & Martin [2012] QCA 103, considered COUNSEL: P J Callaghan SC, with F Lubett, for the applicant P J McCarthy for the respondent SOLICITORS: Boe Williams Anderson for the applicant Director of Public Prosecutions (Queensland) for the responde…
R v Ianculescu
[1999] QCA 439

…cited R v Ianculescu [2000] 2 Qd R 521; [1999] QCA 439, cited R v Jervis [1993] 1 Qd R 643, considered R v Laracy [2007] 180 A Crim R 19; [2007] VSC 19, cited R v Liddle [2006] QCA 45, cited R v Mallon [1997] QCA 58, cited R v Mardlin [2004] WASC 73, cited R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited R v NP;…
R v Mallon
[1997] QCA 58 Para 1

…will examine the sentence more closely, since it will not clearly appear that the plea has, in fact, been taken into account.[49] [49] R v Mallon [1997] QCA 58; R v Liddle [2006] QCA 45 at [18].…
[1959] 2 QB 35
[1959] 2 QB 35

…lotzki [1972] Qd R 379, cited R v Smith [1959] 2 QB 35; [1959] 43 Cr App Rep 121, considered R v Warner (1988) 48 SASR 79, considered R v WAW [2013] QCA 22, considered R v Webber (2000) 114 A Crim R 381; [2000] QCA 316, cited R v Welham & Martin [2012] QCA 103, considered COUNSEL: P J Callaghan SC, with F Lubett,…

Legislation cited in this decision · 2

Criminal Law Amendment Act 1894 (Qld)
10 2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
13 2 mentions (from Para 1)

CITATION:	R v NQ [2013] QCA 402
PARTIES:	R v NQ (applicant)
FILE NO/S:	CA No 58 of 2013 SC No 626 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	20 December 2013
DELIVERED AT:	Brisbane
HEARING DATE:	18 October 2013
JUDGES:	Margaret McMurdo P, Morrison JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty in December 2012 to manslaughter (count 1), and in May 2009 to improperly interfering with a corpse (count 2) – where the applicant was sentenced to nine years and nine months imprisonment on count 1 and that conviction was declared to be a conviction for a serious violent offence – where the applicant was sentenced to two years concurrent imprisonment on count 2 – where the applicant contends that the learned sentencing judge erred by not stating that account was taken of the plea of guilty, as required by s 13(3) of the Penalties and Sentences Act 1992 (Qld) – where the primary judge directly referred to the applicant’s pleas of guilty but did not use the precise terms of s 13(3) – whether the primary judge complied with s 13(3) of the Penalties and Sentences Act CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the statement of facts tendered by consent at sentence referred to statements made by the applicant in his police interview on 30 October 2009, which had previously been ruled inadmissible – where the applicant entered free and informed pleas of guilty prior to sentence – where, at sentence, the applicant was represented by counsel instructed by solicitors – where the statement of facts was tendered by consent and the applicant’s counsel confirmed that it was not disputed and was the truth – whether the learned sentencing judge erred in receiving or acting on the statement of facts insofar as it referred to the applicant’s statements to police on 30 October 2009 CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where a co-offender of the applicant was sentenced to nine years imprisonment for the offence of manslaughter and one year concurrent imprisonment for the offence of interfering with a corpse – where, but for the co-offender’s cooperation, she would have been sentenced to 12 years imprisonment – where the sentencing court exercised its discretion under s 161B(3) not to make a serious violent offence declaration in relation to the co-offender’s conviction for manslaughter – where the applicant carried out an extended violent attack upon the deceased with a baseball bat, while the co-offender led the deceased to that…