R v Rappel

Case [2019] ACTCA 11


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

The Queen v Rappel

Citation:

[2019] ACTCA 11

Hearing Date:

6 May 2019

DecisionDate:

17 May 2019

Before:

Murrell CJ, Mossop and Bromwich JJ

Decision:

Appeal allowed. See [37].

Catchwords:

APPEAL – CRIMINAL LAW – Crown appeal against sentence – intentionally inflicting grievous bodily harm – whether sentence manifestly inadequate – whether primary judge erred in not giving reasons for imposing sentences concurrent with existing sentences – appeal allowed – respondent resentenced

Legislation Cited:

Crimes Act 1900 (ACT) s 19

Crimes (Sentencing) Act 2005 (ACT) ss 66, 72

Cases Cited:

Henry v The Queen [2019] ACTCA 5

Markarian v The Queen [2005] HCA 25; 228 CLR 357
The Queen v Avery [2018] ACTCA 57
R v Bourne; R v Manns [2018] ACTSC 35
R vClarke [1996] 2 VR 520
R v Dunn [2017] ACTSC 227
R v Hoskins [2004] NSWCCA 236
R v Islam [2015] ACTSC 99
The Queen v Lee [2017] ACTCA 30
The Queen v Sharp [2019] ACTCA 7
The Queen v TW [2011] ACTCA 25; 6 ACTLR 18
R v Yuen (unreported, Supreme Court of the Australian Capital Territory, Penfold J, 31 May 2013)

R v Yuen [2019] ACTSC 70

Parties:

The Queen (Appellant)

Marcus Rappel (Respondent)

Representation:

Counsel

R Christensen (Appellant)

J Purnell SC (Respondent)

Solicitors

ACT Director of Public Prosecutions (Appellant)

Bevan & Co Lawyers (Respondent)

File Number:

ACTCA 55 of 2018

Decision under appeal: 

Court/Tribunal:             Supreme Court of the ACT

Before:  Elkaim J

Date of Decision:         27 September 2018

Case Title:  R v Grech; R v Rappel

Citation: [2018] ACTSC 271

THE COURT:

Introduction

  1. This is an appeal by the Crown against sentences imposed on the respondent, Mr Marcus Rappel, by a judge of this Court on 27 September 2018, in respect of two counts of intentionally inflicting grievous bodily harm on 7 August 2017 upon two fellow inmates of a prison at which he was serving a lengthy term of imprisonment.  At the time of that offending, Mr Rappel was serving aggregate sentences of 32 years and 2 months’ imprisonment for:

(a)Murder: 30 years imprisonment;

(b)recklessly inflicting grievous bodily harm: two years and 11 months imprisonment;

(c)assault occasioning actual bodily harm: 10 months imprisonment; and

(d)contravening a protection order: two years and six months imprisonment. 

  1. The prior murder sentence commenced on the date upon which it was committed, being 28 February 2015, and ending on 27 February 2045.  The remaining prior three sentences were imposed so as to be partly concurrent and partly consecutive with each preceding sentence, producing an end date to the aggregate head sentence of 27 April 2047.  The single non-parole period for those four sentences was 26 years, to expire on 27 February 2041. 

  1. The net effect of the sentences imposed for the additional assaults committed in prison on 7 August 2017 was to extend the existing head sentence by just under six months, to 24 October 2047, and to extend the existing…

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R v Rappel [2019] ACTCA 11
Case
[2019] ACTCA 11
Decision Date

CaseChat Overview and Summary

The Crown appealed against the sentence imposed on the respondent, Mr Rappel, who had been convicted of intentionally inflicting grievous bodily harm. The appeal concerned whether the sentence was manifestly inadequate and whether the primary judge erred by not providing reasons for imposing the sentences concurrently with existing sentences. The appeal was heard by Murrell CJ, Mossop and Bromwich JJ.

The central legal issues before the Court of Appeal were whether the sentence imposed was so lenient as to be demonstrably unjust, and whether the failure of the sentencing judge to articulate the reasons for ordering the sentences to be served concurrently with the respondent's existing sentences constituted an error of law.

The Court of Appeal found that the primary judge had erred in failing to provide reasons for the concurrent sentencing, which prevented the Court from assessing whether the sentencing discretion had been properly exercised. The Court determined that the original sentence was manifestly inadequate, having regard to the gravity of the offence and the respondent's criminal history. Consequently, the appeal was allowed, and the respondent was resentenced.

Orders

Orders of the court

Appeal allowed. See [37].

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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