R v Oram; R v Hinds - [2022] QCA 244

SUPREME COURT OF QUEENSLAND

CITATION:

R v Oram; R v Hinds [2022] QCA 244

PARTIES:

In CA No 47 of 2022:

R
v
ORAM, Kobi Daniel
(applicant)

In CA No 84 of 2022:

R
v
HINDS, Emma Louise
(applicant)

FILE NO/S:

CA No 47 of 2022
CA No 84 of 2022
SC No 44 of 2022
SC No 584 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Applications

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence, Oram: 31 January 2022 (Martin J); Date of Sentence, Hinds: 4 April 2022 (Davis J)

DELIVERED ON:

2 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

9 November 2022

JUDGES:

Mullins P and McMurdo and Flanagan JJA

ORDERS:

In CA No 47 of 2022 (Oram):

1.   The application for leave to appeal is refused.

In CA No 84 of 2022 (Hinds):

1.   Leave to appeal is granted.

2.   The appeal is allowed, by varying the sentence to further order that the applicant be eligible for parole on 27 July 2024.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where each applicant pleaded guilty to manslaughter on the basis that they were guilty as members of a group which had formed a common intention to rob the victim in conjunction with one another, of which the unintentional killing of the victim was a probable consequence – where there were five co-offenders, all of whom were sentenced to nine years’ imprisonment – where in sentencing the applicant in CA No 47 of 2022, the sentencing judge remarked that the applicant may have been holding a bat of some sort, but acknowledged that there was uncertainty about whether it was the applicant or another of the co-offenders who was so armed – where it was relevant that the group as a collective was armed with a bat – whether the sentencing judge erred in acting upon a premise that the applicant was holding a bat – whether the sentencing judge used the possibility that the applicant was holding a bat adversely to the applicant

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where each applicant pleaded guilty to manslaughter on the basis that they were guilty as members of a group which had formed a common intention to rob the victim in conjunction with one another, of which the unintentional killing of the victim was a probable consequence – where there were five co-offenders, all of whom were sentenced to nine years’ imprisonment – where the applicant in CA No 84 of 2022 helped the police to detain another of the five co-offenders, placing herself in a dangerous position – where that assistance showed a genuine remorse and was a significant mitigating factor – when, where there is a marked disparity between sentences giving rise to the appearance of…

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.

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Details

Case: [2022] QCA 244
Decision Date: 2 December 2022

CaseChat Overview and Summary

The applicants, Oram and Hinds, pleaded guilty to manslaughter in relation to a fatal robbery, with each being sentenced to nine years' imprisonment. The appellants sought leave to appeal their sentences, raising two primary grounds. Oram contended that the sentencing judge erred by acting on the premise that she was holding a bat, when there was uncertainty about which co-offender was armed. Hinds argued that her sentence was manifestly excessive, particularly in comparison to her co-offenders, and that her assistance in detaining another co-offender should have been recognised as a mitigating factor.

The court examined whether the sentencing judge in Oram's case erred by considering her potential involvement with a bat when there was no clear evidence that she was the one armed. The court concluded that the judge did not act on a wrong principle but rather considered the collective arming of the group. In Hinds' case, the court considered whether her sentence was manifestly excessive or disproportionate compared to her co-offenders. The court found that, although the sentence was not otherwise excessive, the disparity in sentencing created an appearance of injustice. Hinds' significant mitigating factor of assisting police was recognised but not adequately reflected in her original sentence.

The court ultimately found that Oram's appeal against sentence should be dismissed as there was no error in the sentencing approach. Conversely, Hinds' appeal was granted, and her sentence was varied to reflect eligibility for parole on 27 July 2024. This adjustment aimed to address the disparity in sentencing and properly account for her mitigating actions.

Orders

Orders of the court

In CA No 47 of 2022 (Oram):

1. The application for leave to appeal is refused.

In CA No 84 of 2022 (Hinds):

1. Leave to appeal is granted.

2. The appeal is allowed, by varying the sentence to further order that the applicant be eligible for parole on 27 July 2024.

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.

CITATION:	R v Oram; R v Hinds [2022] QCA 244
PARTIES:	In CA No 47 of 2022: R v ORAM, Kobi Daniel (applicant) In CA No 84 of 2022: R v HINDS, Emma Louise (applicant)
FILE NO/S:	CA No 47 of 2022 CA No 84 of 2022 SC No 44 of 2022 SC No 584 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Applications
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence, Oram: 31 January 2022 (Martin J); Date of Sentence, Hinds: 4 April 2022 (Davis J)
DELIVERED ON:	2 December 2022
DELIVERED AT:	Brisbane
HEARING DATE:	9 November 2022
JUDGES:	Mullins P and McMurdo and Flanagan JJA
ORDERS:	In CA No 47 of 2022 (Oram): 1. The application for leave to appeal is refused. In CA No 84 of 2022 (Hinds): 1. Leave to appeal is granted. 2. The appeal is allowed, by varying the sentence to further order that the applicant be eligible for parole on 27 July 2024.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where each applicant pleaded guilty to manslaughter on the basis that they were guilty as members of a group which had formed a common intention to rob the victim in conjunction with one another, of which the unintentional killing of the victim was a probable consequence – where there were five co-offenders, all of whom were sentenced to nine years’ imprisonment – where in sentencing the applicant in CA No 47 of 2022, the sentencing judge remarked that the applicant may have been holding a bat of some sort, but acknowledged that there was uncertainty about whether it was the applicant or another of the co-offenders who was so armed – where it was relevant that the group as a collective was armed with a bat – whether the sentencing judge erred in acting upon a premise that the applicant was holding a bat – whether the sentencing judge used the possibility that the applicant was holding a bat adversely to the applicant CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where each applicant pleaded guilty to manslaughter on the basis that they were guilty as members of a group which had formed a common intention to rob the victim in conjunction with one another, of which the unintentional killing of the victim was a probable consequence – where there were five co-offenders, all of whom were sentenced to nine years’ imprisonment – where the applicant in CA No 84 of 2022 helped the police to detain another of the five co-offenders, placing herself in a dangerous position – where that assistance showed a genuine remorse and was a significant mitigating factor – when, where there is a marked disparity between sentences giving rise to the appearance of…