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R v Orchard

R v Orchard

Case [2005] QCA 141 6 May 2005

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Orchard [2005] QCA 141

PARTIES:

R
v
ORCHARD, Gabriel Vincent
(applicant/appellant)

FILE NO/S:

CA No 11 of 2005
DC No 214 of 2004
DC No 1635 of 2002
DC No 1573 of 2001
DC No 1574 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

6 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

6 April 2005

JUDGES:

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

ORDERS:

1. Application for leave to appeal against sentence granted
2. Appeal allowed
3. Sentence varied by deleting the declaration on count 5 that the applicant was convicted of a serious violent offence

CATCHWORDS:

APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – applicant pleaded guilty to armed robbery in company with personal violence and other related offences – sentenced to nine years imprisonment, plus two three year and one two year sentence imposed concurrently – judge declared the applicant to be a serious violent offender – two partially suspended sentences activated in full – whether nine year sentence with SVO declaration was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 161B(3)

R v Bojovic [1999] QCA 206; [2000] 2 Qd R 183, cited
R v Brennan [2001] QCA 253; CA No 367 of 2000, 27 June 2001, considered
R v Brown [2000] QCA 402; CA No 183 of 2000, 29 September 2000, distinguished
R v Collins [1998] QCA 280; [2000] 1 Qd R 45, cited
R v Keating [2002] QCA 19; CA No 251 of 2001, 6 February 2002, considered
R v Lund [2000] QCA 85; CA No 386 of 1999, 17 March 2000, considered
R v Woods [2001] QCA 474; CA No 320 of 2000, 2 November 2001, distinguished

COUNSEL:

The applicant/appellant appeared on his own behalf
M R Byrne for the respondent

SOLICITORS:

The applicant/appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: I have read the reasons of Jerrard JA and Helman J on this application for leave to appeal against sentence.

The question now before the Court is, as I see it, whether his Honour was justified, as part of the sentence imposed on count 5, in adding under s 161B(3) of the Penalties and Sentences Act 1992 a declaration that the applicant was convicted of a serious violent offence. The offence in count 5, to which the applicant pleaded guilty was one of armed robbery in company with violence, in respect of which the applicant was sentenced to imprisonment for nine years.

The offence was committed at a hotel at Woolloongabba on the evening of 23 April 2003. An amount of more than $34,000 was taken after menacing employees with a sawn-off .22…

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 Orchard

Details

AGLC: R v Orchard [2005] QCA 141
Case: [2005] QCA 141
Decision Date: 6 May 2005

CaseChat Overview and Summary

In the matter of the appeal by the applicant, Orchard, against his sentence, the court heard the case in the High Court of Australia. Orchard had pleaded guilty to multiple charges including armed robbery in company with personal violence and was sentenced to nine years imprisonment. The judge declared Orchard to be a serious violent offender and activated two partially suspended sentences in full, resulting in concurrent sentences of three years and two years. Orchard appealed the sentence, arguing that the nine-year imprisonment term, coupled with the declaration of being a serious violent offender, was manifestly excessive.

The legal issues the court needed to address were whether the sentence imposed was manifestly excessive and whether the declaration that Orchard was a serious violent offender was appropriate. The court had to consider the severity and proportionality of the sentence in light of the crimes committed, the principles of sentencing, and the impact of the serious violent offender declaration. Additionally, the court was tasked with determining if the judge's assessment of Orchard as a serious violent offender was justified based on the evidence and circumstances of the case.

The court concluded that the sentence, particularly the nine-year term and the serious violent offender declaration, was manifestly excessive. The court held that the judge did not adequately justify the seriousness of the offence or the need for such a lengthy sentence. The court further found that the declaration of Orchard as a serious violent offender was not warranted by the evidence and circumstances. Consequently, the court granted the appeal, allowed the appeal against the sentence, and varied the sentence by deleting the declaration on count 5 that Orchard was convicted of a serious violent offence.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed

3. Sentence varied by deleting the declaration on count 5 that the applicant was convicted of a serious violent offence

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 Orchard [2005] QCA 141

Most Recent Citation

R v Wirth [2005] QCA 166

Cases citing this decision · 13 of 13 shown

R v Kampf
[2021] QCA 47 Para 24

…e exercise of discretion to declare an offence to be a serious violent offence. [38](2002) 127 A Crim R 229 at 231 [10]; [2002] QCA 63 at [10]. [39][2005] QCA 141 at [6].…
R v Pitt
[2017] QCA 13 Para 19

…ntifiable error in the exercise of the discretion, but rather that the existence of an error appears from a manifestly excessive sentence. [9][2005] QCA 141 [6]-[7]. [10][2010] QCA 216 [41]-[42]. [11][2005] QCA 141 [26] and [40].…
R v Woods
[2016] QCA 310 Para 1

…hat it was justified by the scale of the trafficking offence in Orchard and that being the second occasion of like offending on parole. [19][2005] QCA 141 at [26]. [20][2002] QCA 19. [21][2015] QCA 181 at [44].…
R v Parker
[2015] QCA 181 Para 15

…ar features of the offence or perhaps offences under consideration, the addition of such a declaration would not be justified.”[25] [24][2005] QCA 141. [25]At [6]. The correctness of these observations was not challenged in this appeal.…
R v Gadd
[2013] QCA 242

…c [2000] 2 Qd R 183, R v DeSalvo [2002] QCA 63, R v Eveleigh [2003] 1 Qd R 398, R v Bidmade [2003] QCA 422, R v A [2003] QCA 538, R v Orchard [2005] QCA 141, R v Cowie [2005] 2 Qd R 533, R v BAW [2005] QCA 334, R v BAX [2005] QCA 365, R v Lewis [2006] QCA 121 and R v Mitchell [2006] QCA 240.…
R v Murray
[2012] QCA 68

…[21]A proposition established in R v Collins [2000] 1 Qd R 45 and repeated in R v Orchard [2005] QCA 141.…
R v Gwilliams and Fish
[2010] QCA 286 Para 1

…the post office (count 12) the judge declined to make such a declaration in respect of her conviction for count 12, but did so in respect of Fish. [3][2005] QCA 141, [26].…
R v Richardson
[2010] QCA 216 Para 1

…) 127 A Crim R 229; [2002] QCA 63; R v Everleigh [2003] 1 Qd R 398; [2002] QCA 219; R v Bidmade [2003] QCA 422; R v A [2003] QCA 538; R v Orchard [2005] QCA 141; R v Cowie [2005] 2 Qd R 533; [2005] QCA 223; R v BAW [2005] QCA 334; R v BAX [2005] QCA 365; R v Lewis (2006) 163 A Crim R 169; [2006] QCA 121; R v Mitc…
R v Riseley; ex parte Attorney-General
[2009] QCA 285

…ffences that, by their nature, warrant them (A proposition established in R. v. Collins [2000] 1 Qd.R. 45 and repeated in R. v. Orchard [2005] QCA 141); • without that last feature, it may be difficult for the reasons to show that the declaration was warranted; • where a discretionary declaration is made, the cri…
R v. Saebar
[2008] QCA 407 Para 1

…a stolen vehicle and on bail for other offences were matters relevant to an assessment of the seriousness of the subject offence. [21]cf. R v Orchard [2005] QCA 141 per McPherson JA at para [7].…
R v McDougall and Collas
[2006] QCA 365 Para 1

…, R v DeSalvo [2002] QCA 63 [8] , R v Eveleigh [2003] 1 Qd R 398 [9] , R v Bidmade [2003] QCA 422 [10] , R v A [2003] QCA 538 [11] , R v Orchard [2005] QCA 141 [12] , R v Cowie [2005] 2 Qd R 533 [13] , R v BAW [2005] QCA 334 [14] , R v BAX [2005] QCA 365 [15] , R v Lewis [2006] QCA 121 [16] and R v Mitchell [200…
R v BAW
[2005] QCA 334 Para 1

…wever, it would be appropriate for sentencing judges to keep in mind the proposition established in R v Collins , and repeated in R v Orchard [2005] QCA 141, that declarations should be reserved for the more serious convictions that, by their nature, warrant them. In these cases using threats of injury to family…
R v Wirth
[2005] QCA 166

…1] QCA 238; CA No 46 of 2001, 22 June 2001, distinguished R v Orchard [2005] QCA 141; CA No 11 of 2005, 6 May 2005, distinguished R v Toms [2004] QCA 406; CA No 259 of 2004, 29 October 2004, distinguished COUNSEL: A J Kimmins, with K Greenwood, for the applicant S G Bain for the respondent SOLICITORS: Russo Lawye…

View all 13 citing cases →

Cases cited in this decision · 13 of 13 shown

R v Gander
[2005] QCA 45 Para 1

…ing that portion of the previously suspended sentences be served cumulatively, but with no SVO declaration attaching to those. However, in R v Gander [2005] QCA 45 this Court approved the remarks in R v Chard; ex parte A-G (Qld) [2004] QCA 372 where Williams JA suggested that where an activated suspended sentenc…
R v Chard; ex parte Attorney-General
[2004] QCA 372 Para 1

…but with no SVO declaration attaching to those. However, in R v Gander [2005] QCA 45 this Court approved the remarks in R v Chard; ex parte A-G (Qld) [2004] QCA 372 where Williams JA suggested that where an activated suspended sentence was to be ordered to be served cumulatively with another term or terms of impr…
R v Brown
[2003] QCA 372 Para 1

…er he relied on being examples of people convicted of multiple offences of robbery. The sentences in those ranged from nine to 12 years ( R v D Brown [2003] QCA 372; R v Senior [2002] QCA 104, and R v Maka Satui [2002] QCA 323). Sentencing serial robbery offenders involves other considerations, and those sentence…
R v Satui
[2002] QCA 323 Para 1

…offences of robbery. The sentences in those ranged from nine to 12 years ( R v D Brown [2003] QCA 372; R v Senior [2002] QCA 104, and R v Maka Satui [2002] QCA 323). Sentencing serial robbery offenders involves other considerations, and those sentences do not assist Mr Orchard. The other decision he relied on, R…
R v Moore; ex parte
[2002] QCA 116 Para 1

…cing serial robbery offenders involves other considerations, and those sentences do not assist Mr Orchard. The other decision he relied on, R v Moore [2002] QCA 116, involved a cumulative sentence on an already substantial term of imprisonment, and does not assist.…
R v Senior
[2002] QCA 104 Para 1

…les of people convicted of multiple offences of robbery. The sentences in those ranged from nine to 12 years ( R v D Brown [2003] QCA 372; R v Senior [2002] QCA 104, and R v Maka Satui [2002] QCA 323). Sentencing serial robbery offenders involves other considerations, and those sentences do not assist Mr Orchard.…
R v Keating
[2002] QCA 19 Para 1

…he declaration, arguing that it is manifestly excessive. [1]McPherson JA and Thomas JA discussed the appropriate form of such an order in R v Keating [2002] QCA 19; CA No 251 of 2001…
R v Woods
[2001] QCA 474 Para 1

…Then there is a matter of R v Woods [2001] QCA 474, where that offender was convicted after a trial of an armed robbery, two counts of deprivation of liberty, and one count of break and enter with intent, all committed at a hotel in which a sum of $34,692.55 was stolen. The offender had carried a rifle or gun, an…
R v Brennan
[2001] QCA 253 Para 1

…The next matter is R v Brennan [2001] QCA 253. That applicant was convicted after a trial of committing an armed robbery of similar nature to Mr Orchard’s, in that he held up a TAB agency at Highgate Hill while holding a gun and partially disguised. His robbery was poorly organised, in that, for example, he used…
R v Brown
[2000] QCA 402 Para 1

…Mr Orchard referred the court to R v W Brown [2000] QCA 402, where that applicant had pleaded guilty to the armed robbery with personal violence of the Mermaid Beach Post Office. That applicant had entered the Post Office with his face covered and holding a toy plastic pistol. In the course of the robbery Mr Brow…
R v Lund
[2000] QCA 85 Para 1

…Mr Orchard referred the court to a number of other sentences, all of which suggest that his is high, or excessive. In Lund [2000] QCA 85, that applicant too had a serious criminal history including for a number of armed robberies, and the armed robbery involved in his application had been carefully planned for s…
R v Bojovic
[1999] QCA 206

…hether nine year sentence with SVO declaration was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 161B(3) R v Bojovic [1999] QCA 206; [2000] 2 Qd R 183, cited R v Brennan [2001] QCA 253; CA No 367 of 2000, 27 June 2001, considered R v Brown [2000] QCA 402; CA No 183 of 2000, 29 September 2000, dis…
R v Collins
[1998] QCA 280

…CA No 367 of 2000, 27 June 2001, considered R v Brown [2000] QCA 402; CA No 183 of 2000, 29 September 2000, distinguished R v Collins [1998] QCA 280; [2000] 1 Qd R 45, cited R v Keating [2002] QCA 19; CA No 251 of 2001, 6 February 2002, considered R v Lund [2000] QCA 85; CA No 386 of 1999, 17 March 2000, consider…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
161B(3) 2 mentions (from Para 1)

CITATION:	R v Orchard [2005] QCA 141
PARTIES:	R v ORCHARD, Gabriel Vincent (applicant/appellant)
FILE NO/S:	CA No 11 of 2005 DC No 214 of 2004 DC No 1635 of 2002 DC No 1573 of 2001 DC No 1574 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	6 May 2005
DELIVERED AT:	Brisbane
HEARING DATE:	6 April 2005
JUDGES:	McPherson and Jerrard JJA and Helman J Separate reasons for judgment of each member of the Court, McPherson and Jerrard JJA concurring as to the orders made, Helman J dissenting
ORDERS:	1. Application for leave to appeal against sentence granted 2. Appeal allowed 3. Sentence varied by deleting the declaration on count 5 that the applicant was convicted of a serious violent offence
CATCHWORDS:	APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – applicant pleaded guilty to armed robbery in company with personal violence and other related offences – sentenced to nine years imprisonment, plus two three year and one two year sentence imposed concurrently – judge declared the applicant to be a serious violent offender – two partially suspended sentences activated in full – whether nine year sentence with SVO declaration was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 161B(3) R v Bojovic [1999] QCA 206; [2000] 2 Qd R 183, cited R v Brennan [2001] QCA 253; CA No 367 of 2000, 27 June 2001, considered R v Brown [2000] QCA 402; CA No 183 of 2000, 29 September 2000, distinguished R v Collins [1998] QCA 280; [2000] 1 Qd R 45, cited R v Keating [2002] QCA 19; CA No 251 of 2001, 6 February 2002, considered R v Lund [2000] QCA 85; CA No 386 of 1999, 17 March 2000, considered R v Woods [2001] QCA 474; CA No 320 of 2000, 2 November 2001, distinguished
COUNSEL:	The applicant/appellant appeared on his own behalf M R Byrne for the respondent
SOLICITORS:	The applicant/appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent