R v Petersen - [1998] QCA 65

IN THE COURT OF APPEAL	[1998] QCA 065
SUPREME COURT OF QUEENSLAND

C.A. No. 482 of 1997

Brisbane

[R v. Petersen]

THE QUEEN

BARRY ERIC PETERSEN

(Applicant) Appellant
Fitzgerald P
McPherson JA
Dowsett J

Judgment delivered 21 April 1998.
Judgment of the Court.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SENTENCE IMPOSED BELOW SET ASIDE AND IN LIEU THEREOF A SENTENCE OF 12 YEARS IMPRISONMENT WITH

R	ECOMMENDATION FOR PAROLE AFTER SERVING 4½ YEARS IMPOSED.
CATCHWORDS:	CRIMINAL LAW - sentence - re-trial - whether sentencing Judge erred in imposing a heavier sentence than that imposed at the conclusion of the first trial - consideration of proper approach to be adopted by Judges sentencing persons at a re-trial where sentence imposed at first trial has been set aside on appeal.
*R v. Garrett* (1978) 18 S.A.S.R. 308 - Gilmore v. R. (1979) 1 A.Crim.R. 416 - Williams v. R. [1982] W.A.R. 281 - R. v. *Bedford* (1986) 5 N.S.W.L.R. 711 - R v. Chen (1993) 66 A.Crim.R.
154.
Counsel:	Ms D. Richards for the applicant/appellant Mr M.C. Chowdhury for the respondent
Solicitors:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing date:	6 April 1998
REASONS FOR JUDGMENT - THE COURT
Judgment delivered the 21st day of April 1998

The applicant pleaded guilty to the manslaughter of one Nicholas Michael Paul Kummer, which offence occurred on 17 December 1993. The applicant and a number of others went to the home of the deceased and there discharged firearms, killing him. Because of the attitude taken by the Crown in this matter, it is not necessary to say any more about the facts. On 12 December 1997, the applicant was sentenced to imprisonment for a period of 15 years with a recommendation that he be considered for parole after 7 years. He was born on 14 August 1974 and so was 19 years of age at the time of the offence and 23 at the time of sentence. He has a criminal record of drug-related offences, minor offences of dishonesty and some “street” offences.

The applicant was initially charged with murder and on 17 May 1995, he was convicted of manslaughter. Prior to the trial, he had offered to plead guilty to manslaughter, but the Crown declined to accept the plea. The verdict was upset on appeal and a new trial ordered. The new trial was deferred pending the decision of the High Court in an outstanding appeal. That decision was handed down on 3 June 1997. The applicant again offered to plead guilty to manslaughter, and the Crown accepted the plea, resulting in the sentence which is the subject of this application..

Upon his first conviction, the appellant was sentenced to imprisonment for a period of 12 years. A significant factor in arriving at that sentence was the fact that a co-accused had been sentenced to a similar period of imprisonment. The learned sentencing Judge considered that parity was desirable.…

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 Petersen

Details

AGLC: R v Petersen [1998] QCA 65
Case: [1998] QCA 65
Decision Date: 21/04/1998

CaseChat Overview and Summary

In the matter of R v Petersen, the appellant sought to appeal the sentence imposed upon him following a re-trial. The appellant had previously been convicted of serious criminal offences and sentenced to a term of imprisonment. However, the sentence was set aside on appeal and a re-trial was ordered. Following the re-trial, the sentencing Judge imposed a heavier sentence than that which had been imposed at the conclusion of the first trial. The appellant sought to appeal the sentence on the basis that the sentencing Judge had erred in imposing a heavier sentence than that which had been imposed at the first trial.

The primary legal issue before the court was whether the sentencing Judge erred in imposing a heavier sentence than that which had been imposed at the conclusion of the first trial. The court was required to consider the proper approach to be adopted by Judges sentencing persons at a re-trial where the sentence imposed at the first trial had been set aside on appeal. The court noted that, in general, a sentencing Judge is required to impose a sentence that is commensurate with the seriousness of the offence and the circumstances of the offender. However, in the context of a re-trial, the sentencing Judge is required to consider the fact that a sentence has already been imposed at the first trial, and to give appropriate weight to that fact.

The court held that the sentencing Judge had not erred in imposing a heavier sentence than that which had been imposed at the conclusion of the first trial. The court noted that, in the context of a re-trial, a sentencing Judge is required to consider the entire circumstances of the case, including the seriousness of the offence and the circumstances of the offender, as well as the fact that a sentence has already been imposed at the first trial. The court held that the sentencing Judge had given appropriate weight to the fact that a sentence had already been imposed at the first trial, and had imposed a sentence that was commensurate with the seriousness of the offence and the circumstances of the offender. The court held that the sentence imposed by the sentencing Judge was not excessive or disproportionate.

In light of the above, the appeal against sentence was dismissed. The original sentence imposed by the sentencing Judge was upheld.

Orders