R v Perini; ex parte A-G (Qld) - [2011] QCA 30

SUPREME COURT OF QUEENSLAND

CITATION:

R v Perini; ex parte A-G (Qld) [2011] QCA 30

PARTIES:

R
v
PERINI, Maurizio
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 206 of 2010
SC No 325 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 March 2011

DELIVERED AT:

Brisbane

HEARING DATE:

17 February 2011

JUDGES:

Chief Justice, Muir and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. The appeal is allowed;

2. The sentence imposed in the Supreme Court of 13 years imprisonment for manslaughter is set aside and substituted with a sentence of 18 years imprisonment; and

3. The orders and directions made on 20 August 2010 are otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCE – OFFENCES AGAINST THE PERSON – HOMICIDE – MANSLAUGHTER – SENTENCE – PARTICULAR CASES – respondent broke into neighbouring elderly woman’s unit and killed her by asphyxiation and wounding – respondent later indecently interfered with her corpse and stole property – respondent’s actions were pre-meditated but he was found by Mental Health Court to have diminished responsibility at time of offences due to intellectual deficit – respondent showed no remorse – respondent pleaded guilty to manslaughter, two counts of burglary and two counts of interference with a corpse – respondent sentenced to 13 years imprisonment for manslaughter – evidence that respondent would require high degree of supervision upon his eventual release – whether sentence manifestly inadequate – whether sentence failed to reflect the gravity of the offending – whether sentence gave too much weight to mitigating factors – what effect diminished responsibility should have on sentence – whether the ability of the Attorney-General to apply for continuing detention order should alter sentence

Penalties and Sentences Act 1992 (Qld), s 9(1)(a), s 9(1)(d), s 9(1)(e), s 9(4)(a), s 9(4)(b), s9(4)(k), s 13, Pt 9A
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 5(6), s 6, Schedule

R v Aeon Masterson, unreported, Court of Criminal Appeal, Qld, CA No 112 of 1990, 12 June 1990, considered
R v Lacey; ex parte A-G (Qld) (2009) 197 A Crim R 399; [2009] QCA 274, cited
R v Miguel [1994] QCA 512, considered
R v Neumann; ex parte Attorney-General (Qld) [2007] 1 Qd R 53; [2005] QCA 362, considered
R v Potter; ex parte Attorney-General (Qld) (2008) 183 A Crim R 497; [2008] QCA 91, considered
R v Tonkin& Montgomery [1975] Qd R 1, considered
Veen v The Queen[No 2] (1988) 164 CLR 465; [1988] HCA 14, cited

COUNSEL:

A W Moynihan SC, with A D Anderson, for the appellant
J D Briggs for the respondent

SOLICITORS:

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

[1] CHIEF JUSTICE: The respondent was 37 years old when he committed the instant offences. They were manslaughter, for which…

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: [2011] QCA 30
Decision Date: 1 March 2011

CaseChat Overview and Summary

The respondent, who had broken into a neighbouring elderly woman's unit, killed her by asphyxiation and wounding, indecently interfered with her corpse, and stole property. The respondent's actions were premeditated but he was found by the Mental Health Court to have diminished responsibility at the time of the offences due to an intellectual deficit. The respondent showed no remorse and pleaded guilty to manslaughter, two counts of burglary and two counts of interference with a corpse. The Supreme Court sentenced the respondent to 13 years imprisonment for manslaughter, a sentence that the Attorney-General of Queensland appealed on the grounds that it was manifestly inadequate, failed to reflect the gravity of the offending, gave too much weight to mitigating factors, and did not adequately consider the effect of diminished responsibility on the sentence. The appeal also questioned whether the ability of the Attorney-General to apply for a continuing detention order should alter the sentence.

The appeal centred on whether the sentence imposed was manifestly inadequate, failing to appropriately weigh the gravity of the offences, and whether it gave too much weight to mitigating factors. The court considered whether diminished responsibility should reduce the sentence and whether the possibility of a continuing detention order should be factored into the sentencing decision. The court acknowledged the respondent's intellectual deficit but noted that his lack of remorse and the heinous nature of the crimes warranted a harsher sentence. The court also considered the need for public protection given the respondent's potential danger upon release.

The Court of Appeal found that the original sentence was manifestly inadequate and did not appropriately reflect the gravity of the respondent's crimes. The court set aside the original sentence of 13 years imprisonment and imposed a sentence of 18 years imprisonment for manslaughter, taking into account the respondent's intellectual deficit, lack of remorse, and the need for public protection. The court also confirmed the orders and directions made on 20 August 2010, which included provisions for the respondent's potential danger upon release and the possibility of a continuing detention order.

Orders

Orders of the court

1. The appeal is allowed;

2. The sentence imposed in the Supreme Court of 13 years imprisonment for manslaughter is set aside and substituted with a sentence of 18 years imprisonment; and

3. The orders and directions made on 20 August 2010 are otherwise confirmed.

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 Perini; ex parte A-G (Qld) [2011] QCA 30
PARTIES:	R v PERINI, Maurizio (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 206 of 2010 SC No 325 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	1 March 2011
DELIVERED AT:	Brisbane
HEARING DATE:	17 February 2011
JUDGES:	Chief Justice, Muir and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. The appeal is allowed; 2. The sentence imposed in the Supreme Court of 13 years imprisonment for manslaughter is set aside and substituted with a sentence of 18 years imprisonment; and 3. The orders and directions made on 20 August 2010 are otherwise confirmed.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCE – OFFENCES AGAINST THE PERSON – HOMICIDE – MANSLAUGHTER – SENTENCE – PARTICULAR CASES – respondent broke into neighbouring elderly woman’s unit and killed her by asphyxiation and wounding – respondent later indecently interfered with her corpse and stole property – respondent’s actions were pre-meditated but he was found by Mental Health Court to have diminished responsibility at time of offences due to intellectual deficit – respondent showed no remorse – respondent pleaded guilty to manslaughter, two counts of burglary and two counts of interference with a corpse – respondent sentenced to 13 years imprisonment for manslaughter – evidence that respondent would require high degree of supervision upon his eventual release – whether sentence manifestly inadequate – whether sentence failed to reflect the gravity of the offending – whether sentence gave too much weight to mitigating factors – what effect diminished responsibility should have on sentence – whether the ability of the Attorney-General to apply for continuing detention order should alter sentence Penalties and Sentences Act 1992 (Qld), s 9(1)(a), s 9(1)(d), s 9(1)(e), s 9(4)(a), s 9(4)(b), s9(4)(k), s 13, Pt 9A Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 5(6), s 6, Schedule R v Aeon Masterson, unreported, Court of Criminal Appeal, Qld, CA No 112 of 1990, 12 June 1990, considered R v Lacey; ex parte A-G (Qld) (2009) 197 A Crim R 399; [2009] QCA 274, cited R v Miguel [1994] QCA 512, considered R v Neumann; ex parte Attorney-General (Qld) [2007] 1 Qd R 53; [2005] QCA 362, considered R v Potter; ex parte Attorney-General (Qld) (2008) 183 A Crim R 497; [2008] QCA 91, considered R v Tonkin& Montgomery [1975] Qd R 1, considered Veen v The Queen[No 2] (1988) 164 CLR 465; [1988] HCA 14, cited
COUNSEL:	A W Moynihan SC, with A D Anderson, for the appellant J D Briggs for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent