R v Pollock

Case [2012] QCA 231

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pollock [2012] QCA 231

PARTIES:

R
v
POLLOCK, Andrew Murray
(applicant)

FILE NO/S:

CA No 66 of 2012
SC No 1037 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

31 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

8 August 2012

JUDGES:

Muir and White JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where applicant unlawfully killed his father in 2004 – where applicant, on his fourth trial for murder, was acquitted of murder and convicted on his own plea of manslaughter in 2012 – where applicant previously sentenced at a sentence reopening in 2006 to two years imprisonment for an armed robbery committed in 1999 – where that sentence was ordered to be served concurrently with the sentence of life imprisonment – where submitted sentence imposed for manslaughter offended the principle of totality – where submitted applicant’s two year sentence for the robbery overstated the criminality of the offending conduct – where submitted sentencing judge gave excessive weight to applicant’s criminal history and to the fact he was on bail when he killed his father – whether sentence manifestly excessive

Corrective Services Act 2006 (Qld), s 182(2)
Penalties and Sentences Act 1992 (Qld), s 161A(a)(ii)

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, considered
Pop v The Queen (2000) 116 A Crim R 398; [2000] WASCA 283, considered
R v Basso & Frazzetto (1999) 108 A Crim R 392; [1999] VSCA 201, cited
R v Corcoran[2004] QCA 441, considered
R v Del Arco[1994] QCA 70, cited
R v DeSalvo (2002) 127 A Crim R 229; [2002] QCA 63, cited
R v Dwyer[2008] QCA 117, considered
R v Gray [1977] VR 225; [1977] VicRp 27, cited
R v Harris (2007) 171 A Crim R 267; [2007] NSWCCA 130, considered
R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381, considered
R v Mills[2008] QCA 146, considered
R v MP[2004] QCA 170, considered
R v Murray [2012] QCA 68, considered
R v Ogborne[2006] QCA 236, cited
R v Sanderson[2003] QCA 338, cited
R v Schubring; ex parte Attorney-General (Qld) [2005] 1 Qd R 515; [2004] QCA 418, cited
R v Sebo; ex parte A-G (Qld) (2007) 179 A Crim R 24; [2007] QCA 426, considered

COUNSEL:

S J Keim SC, with A E Cappellano, for the applicant
A W Moynihan SC for the respondent

SOLICITORS:

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

  1. MUIR JA: The applicant, on…

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Details
AGLC
R v Pollock [2012] QCA 231
Case
[2012] QCA 231
Decision Date

CaseChat Overview and Summary

The appeal in R v Pollock was brought by the applicant, who was convicted of manslaughter after unlawfully killing his father in 2004. This was his fourth trial for the offence, with the previous three trials ending in acquittals for murder. The applicant had also been previously sentenced for an armed robbery committed in 1999, and this sentence was ordered to be served concurrently with his life sentence for manslaughter. The applicant now sought to appeal against his sentence for manslaughter, claiming that it was manifestly excessive and contravened the principle of totality. The applicant submitted that his two-year sentence for the armed robbery overstated the criminality of that offending conduct, and that the sentencing judge gave excessive weight to the applicant’s criminal history and the fact that he was on bail when he killed his father.

The legal issues before the court were whether the sentence imposed for the manslaughter offence was manifestly excessive and whether the principle of totality had been contravened. The principle of totality requires that the aggregate of a prisoner's sentences does not exceed the maximum penalty for the most serious offence. The court had to consider whether the sentence imposed for the manslaughter offence was so excessive as to amount to a manifest miscarriage of justice. The court also had to consider whether the sentencing judge gave excessive weight to the applicant's criminal history and to the fact that he was on bail when he killed his father. The court was required to determine whether the sentence imposed for the manslaughter offence contravened the principle of totality.

The court found that the sentence imposed for the manslaughter offence was not manifestly excessive and did not contravene the principle of totality. The court held that the sentencing judge had appropriately taken into account the applicant's criminal history and the fact that he was on bail when he killed his father. The court held that the sentence imposed for the armed robbery offence did not overstate the criminality of that offending conduct. The court held that the sentence imposed for the manslaughter offence was appropriate and did not amount to a manifest miscarriage of justice.

The application for leave to appeal was refused.

Orders

Orders of the court

The application for leave to appeal is refused.

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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