R v. Potter; ex parte A-G (Qld) - [2008] QCA 91

SUPREME COURT OF QUEENSLAND

CITATION:

R v Potter; ex parte A-G (Qld) [2008] QCA 91

PARTIES:

R
v
POTTER, Alice Maree
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 16 of 2008
SC No 1145 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 April 2008

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2008

JUDGES:

Keane JA, Mackenzie AJA and Chesterman J
Separate reasons for judgment of each member of the Court, Keane JA and Mackenzie AJA concurring as to the order made, Chesterman J dissenting

ORDER:

Appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATION TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent smothered her five year old daughter – where respondent plead guilty to charge of manslaughter on ground of diminished responsibility – where respondent sentenced to eight years imprisonment – where respondent eligible for parole after three years – whether sentence failed to adequately reflect the gravity of the offence

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATION TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where defence of diminished responsibility established before Mental Health Court – whether mitigating effect of diminished responsibility is sufficient allowance for all mitigating factors – whether further mitigating factors may be considered

Criminal Code Act 1899 (Qld), s 302(1)(b), s 304A, s 69A(1)
Mental Health Act 2000 (Qld), s 257, s 334
Penalties and Sentences Act 1992 (Qld) s 159A

R v Auberson; ex parte A-G (Qld)[1996] QCA 321; CA No 248 and 249 of 1996, 3 September 1996, cited
R v Beacham (2006) 163 A Crim R 348; [2006] QCA 268, distinguished
R v Blacklidge, unreported, NSW Court of Criminal Appeal, No 60510 of 1995, 12 December 1995, considered
R v Chard; ex parte A-G (Qld)[2004] QCA 372, considered
R v Cole, unreported, Mullins J, SC No 611 of 1999, 28 June 2001, considered
R v De Voss [1995] QCA 518; CA No 229 of 1995, 24 November 1995, considered
R v DeSalvo (2002) 127 A Crim R 229; [2002] QCA 63, cited

R v Dol, unreported, White J, SC No 379 of 2001, 1 April 2004, considered
R v Dunn[1994] QCA 147; CA No 29 of 1994, 13 May 1994, cited
R v Elliott[2000] QCA 267, cited
R v Engert (1995) 84 A Crim R 67, cited
R v Goeldner, unreported, Douglas J, SC No 465 of 2002, 20 September 2004, considered
R v Goodfellow, unreported, Fryberg J, SC No 219 of 2004, 15 October 2004, considered
R v Green & Haliday; ex parte A-G…

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: [2008] QCA 91
Decision Date: 18 April 2008

CaseChat Overview and Summary

The case of R v Potter; ex parte A-G (Qld) involved the Attorney-General of Queensland seeking to appeal against the sentence imposed on the respondent, Potter, who had smothered her five-year-old daughter. The respondent had pleaded guilty to manslaughter on the ground of diminished responsibility before the Mental Health Court. The respondent was sentenced to eight years in prison, with eligibility for parole after serving three years. The Attorney-General argued that the sentence did not adequately reflect the gravity of the offence.

The primary legal issues before the court were whether the sentence imposed by the trial judge was manifestly inadequate and whether the mitigating effect of diminished responsibility was sufficient to account for all mitigating factors, thereby precluding the consideration of further mitigating factors. The court needed to determine if the sentence adequately reflected the severity of the crime committed by the respondent.

The court found that the sentence of eight years imprisonment, with eligibility for parole after three years, was not manifestly inadequate. The court concluded that the mitigating effect of diminished responsibility was a sufficient allowance for all mitigating factors. Therefore, no further mitigating factors could be considered. As a result, the appeal against the sentence was dismissed, and the original sentence stood.

Orders

Orders of the court

Appeal against sentence dismissed

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 Potter; ex parte A-G (Qld) [2008] QCA 91
PARTIES:	R v POTTER, Alice Maree (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 16 of 2008 SC No 1145 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 April 2008
DELIVERED AT:	Brisbane
HEARING DATE:	17 March 2008
JUDGES:	Keane JA, Mackenzie AJA and Chesterman J Separate reasons for judgment of each member of the Court, Keane JA and Mackenzie AJA concurring as to the order made, Chesterman J dissenting
ORDER:	Appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATION TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent smothered her five year old daughter – where respondent plead guilty to charge of manslaughter on ground of diminished responsibility – where respondent sentenced to eight years imprisonment – where respondent eligible for parole after three years – whether sentence failed to adequately reflect the gravity of the offence CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATION TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where defence of diminished responsibility established before Mental Health Court – whether mitigating effect of diminished responsibility is sufficient allowance for all mitigating factors – whether further mitigating factors may be considered Criminal Code Act 1899 (Qld), s 302(1)(b), s 304A, s 69A(1) Mental Health Act 2000 (Qld), s 257, s 334 Penalties and Sentences Act 1992 (Qld) s 159A R v Auberson; ex parte A-G (Qld)[1996] QCA 321; CA No 248 and 249 of 1996, 3 September 1996, cited R v Beacham (2006) 163 A Crim R 348; [2006] QCA 268, distinguished R v Blacklidge, unreported, NSW Court of Criminal Appeal, No 60510 of 1995, 12 December 1995, considered R v Chard; ex parte A-G (Qld)[2004] QCA 372, considered R v Cole, unreported, Mullins J, SC No 611 of 1999, 28 June 2001, considered R v De Voss [1995] QCA 518; CA No 229 of 1995, 24 November 1995, considered R v DeSalvo (2002) 127 A Crim R 229; [2002] QCA 63, cited R v Dol, unreported, White J, SC No 379 of 2001, 1 April 2004, considered R v Dunn[1994] QCA 147; CA No 29 of 1994, 13 May 1994, cited R v Elliott[2000] QCA 267, cited R v Engert (1995) 84 A Crim R 67, cited R v Goeldner, unreported, Douglas J, SC No 465 of 2002, 20 September 2004, considered R v Goodfellow, unreported, Fryberg J, SC No 219 of 2004, 15 October 2004, considered R v Green & Haliday; ex parte A-G…