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 2001DIVISION:
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 dissentingORDERS:
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 offenceCATCHWORDS:
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, distinguishedCOUNSEL:
The applicant/appellant appeared on his own behalf
M R Byrne for the respondentSOLICITORS:
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…
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- AGLC
- R v Orchard [2005] QCA 141
- Case
- [2005] QCA 141
- Decision Date
CaseChat Overview and Summary
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
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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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