R v Powell - [2022] QCA 164

SUPREME COURT OF QUEENSLAND

CITATION:

R v Powell [2022] QCA 164

PARTIES:

R
v
POWELL, Isaac William
(applicant)

FILE NO/S:

CA No 10 of 2022
SC No 38 of 2021
SC No 40 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Bundaberg – Date of Sentence: 13 December 2021 (Crow J)

DELIVERED ON:

2 September 2022

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2022

JUDGES:

Morrison and Flanagan JJA and Beech AJA

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was convicted, by his own plea of guilty, to manslaughter and three other charges – where the applicant admitted to unlawfully killing his friend – where the applicant struck the deceased resulting in his death – where the applicant struck the deceased as he was jealous and after consuming methylamphetamine – where the applicant fled the scene – where the applicant had subsequently adopted a lie as to why he struck the deceased – where the applicant fled from police – where the applicant had a significant criminal history – where the applicant was a drug user – where the sentencing judge observed that the applicant had a tendency to be violent while using drugs – where the sentencing judge sentenced the applicant to nine years imprisonment with a parole eligibility date fixed at four years – whether the sentence was plainly unjust or unreasonable

Penalties and Sentences Act 1992 (Qld), s 159A

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206, referred
R v Callow[2017] QCA 304, considered
R v Matthews[2007] QCA 144, distinguished
R v Simeon[2000] QCA 470, referred
R v Skondin[2015] QCA 138, considered
R v Tientjes; ex parte Attorney-General[1999] QCA 480, referred
R v Tout[2012] QCA 296, considered
Wongv The Queen (2001) 207 CLR 584; [2001] HCA 64, cited

COUNSEL:

S J Farnden and E J Cooper for the applicant
C W Wallis for the respondent

SOLICITORS:

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

MORRISON JA: I agree with the reasons prepared by Flanagan JA and the order his Honour proposes.
FLANAGAN JA: On 13 December 2021 in the Supreme Court at Bundaberg the applicant pleaded guilty to one count of manslaughter, namely that on 16 September 2019 at Torquay he unlawfully killed Paul Simon Herdman. The applicant also pleaded guilty to four summary charges, one of unlawful assault of a person 60 years or more, one of wilful damage and two of possession of a dangerous drug.
For the count of manslaughter Crow J sentenced the applicant to nine years imprisonment. A concurrent sentence of four months imprisonment was imposed for the unlawful assault…

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 Powell

Details

AGLC: R v Powell [2022] QCA 164
Case: [2022] QCA 164
Decision Date: 2 September 2022

CaseChat Overview and Summary

In the case of R v Powell, the applicant appealed against his sentence for manslaughter and three other related charges, following a guilty plea. The applicant had struck the deceased, resulting in death, driven by jealousy and under the influence of methylamphetamine. After the incident, he fled the scene and had a significant criminal history and a history of drug use. The sentencing judge sentenced the applicant to nine years imprisonment with parole eligibility set at four years. The applicant argued that the sentence was manifestly excessive.

The legal issue before the court was whether the sentence was plainly unjust or unreasonable. The applicant compared his sentence to those in other cases, but the court noted that a contention that a sentence is manifestly excessive is not established merely by showing that it is markedly different from sentences in other cases. Instead, the applicant must demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is unreasonable or plainly unjust. The court found that the sentence was broadly consistent with customary sentencing standards for manslaughter offences, and the sentencing judge had considered relevant cases and noted the distinctions.

In conclusion, the court found that the sentence was not manifestly excessive and dismissed the appeal. The sentencing judge had considered the relevant principles and had appropriately exercised their discretion. The court also noted that the applicant had relied on a limited number of comparative cases, which was insufficient to establish a pattern of customary sentencing. Therefore, the court refused the application for leave to appeal against the sentence.

Orders

Orders of the court

Application for leave to appeal against sentence 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

In fixing the parole eligibility date at the four year mark, his Honour had regard to these considerations as well as the applicant’s antecedents.Consideration The applicant submits by reference to R v Skondin, R v Callow and R v Matthews [2007] QCA 144 that the head sentence of nine years with a parole eligibility date fixed at the four year mark was manifestly excessive. The difficulty with the applicant suggesting appealable error by reference to these comparatives was identified by Morrison JA in Callow at [35]–[36]:“When considering the question of whether a sentence is manifestly excessive, one must bear in mind what was said in R v Tout [[2012] QCA 296 at [8]]:“[A] contention that the sentence is manifestly excessive is not established merely if the sentence is markedly different from sentences in other cases. It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is ‘unreasonable or plainly unjust’: Hili v The Queen (2010) 242 CLR 520 at [58], [59].”Furthermore, there is no one single correct sentence. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the relevant statutory regime. In respect of sentences for manslaughter, because the circumstances are infinitely wide, the sentencing judge’s discretion is comparatively wide.” To similar effect are the observations by Gaudron, Gummow and Hayne JJ in Wongv The Queen (2001) 207 CLR 584 at [58]:“[A]ppellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.” This flaw in the applicant’s submissions is magnified by the fact that the applicant relies on comparison with only two or three cases. Sentences imposed in a few cases do not define the bounds of appropriate sentences and are not sufficient in number to sustain conclusions as to the patterns of sentences customarily imposed. Bearing in mind the various similarities and differences between the present case and the offending and offenders in reasonably comparable cases, the sentence imposed in the present case is broadly consistent with customary sentencing standards for manslaughter offences. Crow J received extensive written submissions which addressed both R vSkondin and R v Callow. The sentencing remarks reveal that his Honour had read both cases and noted points of distinction. Callow, for example, was 23 years of age at the time of the offences and had no criminal history. His Honour also noted that Skondin and Callow referred to other comparatives including R v Simeon [2000] QCA 470, R v Tientjes; ex parte Attorney-General [1999] QCA 480 and R v Bojovic [1999] QCA 206.

CITATION:	R v Powell [2022] QCA 164
PARTIES:	R v POWELL, Isaac William (applicant)
FILE NO/S:	CA No 10 of 2022 SC No 38 of 2021 SC No 40 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Bundaberg – Date of Sentence: 13 December 2021 (Crow J)
DELIVERED ON:	2 September 2022
DELIVERED AT:	Brisbane
HEARING DATE:	18 August 2022
JUDGES:	Morrison and Flanagan JJA and Beech AJA
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was convicted, by his own plea of guilty, to manslaughter and three other charges – where the applicant admitted to unlawfully killing his friend – where the applicant struck the deceased resulting in his death – where the applicant struck the deceased as he was jealous and after consuming methylamphetamine – where the applicant fled the scene – where the applicant had subsequently adopted a lie as to why he struck the deceased – where the applicant fled from police – where the applicant had a significant criminal history – where the applicant was a drug user – where the sentencing judge observed that the applicant had a tendency to be violent while using drugs – where the sentencing judge sentenced the applicant to nine years imprisonment with a parole eligibility date fixed at four years – whether the sentence was plainly unjust or unreasonable Penalties and Sentences Act 1992 (Qld), s 159A Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206, referred R v Callow[2017] QCA 304, considered R v Matthews[2007] QCA 144, distinguished R v Simeon[2000] QCA 470, referred R v Skondin[2015] QCA 138, considered R v Tientjes; ex parte Attorney-General[1999] QCA 480, referred R v Tout[2012] QCA 296, considered Wongv The Queen (2001) 207 CLR 584; [2001] HCA 64, cited
COUNSEL:	S J Farnden and E J Cooper for the applicant C W Wallis for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent