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R v Richardson

R v Richardson

Case [2010] QCA 216 20 August 2010

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Richardson [2010] QCA 216

PARTIES:

R
v
RICHARDSON, Jamie Kenneth
(appellant/applicant)

FILE NO/S:

CA No 287 of 2009
CA No 79 of 2010
DC No 2001 of 2009
DC No 2067 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

20 August 2010

DELIVERED AT:

Brisbane

HEARING DATE:

25 May 2010

JUDGES:

Fraser and White JJA and Mullins J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal against conviction is dismissed.

2.   The application for leave to appeal against sentence is granted.

3.   The appeal is allowed and the sentences imposed below set aside.

4.   The appellant is sentenced to:

a.   eight years imprisonment for the armed robbery in company committed on 20 September 2007;

b.   seven years imprisonment for the robbery committed on 31 December 2007;

c.   18 months imprisonment for the unlawful use of a motor vehicle to facilitate the commission of an indictable offence; and

d.   18 months imprisonment for the dangerous operation of a vehicle.

All sentences to be served concurrently.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where appellant convicted after trial of one count of robbery whilst pretending to be armed with a firearm and in company – where evidence implicating the appellant was a DNA sample – where evidence before court of possibility of secondary transference of DNA – whether jury were entitled to exclude the possibility of secondary transference as an explanation consistent with the appellant’s innocence

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where sentencing judge re-opened another sentence of imprisonment for armed robbery imposed on the applicant because the sentencing judge in that matter had not been referred to the applicant’s criminal history in New South Wales – where sentencing judge imposed a term of imprisonment of five years for this armed robbery and declared it to be a serious violent offence pursuant to s 161B(3) of the Penalties and Sentences Act 1992 (Qld) – where sentencing judge imposed a cumulative term of imprisonment of four years for the offences in relation to the re-opened sentence – whether the serious violent offence declaration should have been made – whether the sentences taken together and applying the totality principle were too high, even without with the declaration – whether sentence manifestly excessive

Corrective Services Act 2006 (Qld), s 182(2), s 184(2), s 185(4)
Penalties and Sentences Act 1992 (Qld), s 161B(3), s 188

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
MFA v The Queen (2002)…

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 Richardson

Details

AGLC: R v Richardson [2010] QCA 216
Case: [2010] QCA 216
Decision Date: 20 August 2010

CaseChat Overview and Summary

In the case of R v Richardson, the appellant was convicted in the trial division of the Supreme Court of Queensland for various offences, including robbery while pretending to be armed with a firearm and in company. The primary piece of evidence against the appellant was a DNA sample found at the scene of the crime, which implicated him in the robbery. The appellant appealed both his conviction and his sentence, arguing that the jury should have considered the possibility of secondary transference of the DNA evidence as an explanation consistent with his innocence. The appeal against the conviction was dismissed, but the appeal against the sentence was allowed.

The court considered several legal issues regarding the conviction. The primary issue was whether the jury was entitled to exclude the possibility of secondary transference of DNA as an explanation for the appellant's presence at the crime scene. The court concluded that the jury was properly directed to consider the evidence and could reasonably conclude that the presence of the appellant's DNA at the scene was not due to secondary transference. Consequently, the appeal against the conviction was dismissed.

Regarding the sentence, the court considered whether the declaration of the armed robbery as a serious violent offence under section 161B(3) of the Penalties and Sentences Act 1992 (Qld) was appropriate. The sentencing judge had reopened the sentence for another armed robbery offence, imposing a term of imprisonment of five years for this offence, and a cumulative term of imprisonment of four years for the offences in relation to the reopened sentence. The court found that the declaration of the serious violent offence was not justified and that the sentences, taken together and applying the totality principle, were excessive. The appeal against the sentence was allowed, and the sentences were set aside. The appellant was subsequently sentenced to eight years imprisonment for the armed robbery, seven years for the robbery, and 18 months each for the unlawful use of a motor vehicle and dangerous operation of a vehicle, all to be served concurrently.

Orders

Orders of the court

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against sentence is granted.

3. The appeal is allowed and the sentences imposed below set aside.

4. The appellant is sentenced to:

a. eight years imprisonment for the armed robbery in company committed on 20 September 2007;

b. seven years imprisonment for the robbery committed on 31 December 2007;

c. 18 months imprisonment for the unlawful use of a motor vehicle to facilitate the commission of an indictable offence; and

d. 18 months imprisonment for the dangerous operation of a vehicle.

All sentences to be served concurrently.

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.

Citations

AGLC Citation

R v Richardson [2010] QCA 216

Most Recent Citation

R v Richardson (No 2) [2010] QCA 278

Cases citing this decision · 10 of 10 shown

R v McGeady
[2020] QCA 267 Para 14

…r McGeady’s DNA to the inner surface of the fingertip of the latex glove as reasonable hypotheses. Mr Hoare contrasts this case with R v Richardson [2010] QCA 216 where (at [23]) secondary transference was treated as inherently unlikely. Mr Richardson’s DNA profile matched the DNA profile of the major contributor…
R v Armitage, Armitage and Dean
[2020] QSC 41

…07] Qd R 87, cited R v NQ [2013] QCA 402, distinguished R v Richards [2017] QCA 299, applied R v Richardson [2010] QCA 216, cited R v T [1995] 2 Qd R 192, distinguished R v Taylor and Hicks [2011] QCA 207, distinguished R v WAW [2013] QCA 22, distinguished R v Wellham and Martin [2012] QCA 103, distinguished R v…
Pearce v The Commissioner of Police
[2019] QDC 12 Para 22

…to eight years imprisonment for armed robbery and varying other offences. [4] R v Orchard [1998] QCA 249; R v Hitchens [1998] QCA 314; R v Richardson [2010] QCA 216.…
R v Pitt
[2017] QCA 13 Para 19

…ise of the discretion, but rather that the existence of an error appears from a manifestly excessive sentence. [9][2005] QCA 141 [6]-[7]. [10][2010] QCA 216 [41]-[42]. [11][2005] QCA 141 [26] and [40].…
R v Cole
[2016] QCA 307 Para 24

…[17]; R v Abraham [18]; R v Dawson [19]; R v Fulton [20]; R v Kapitano [21]; R v Lemmo [22]; R v Lotoaniui [23] and R v Gwilliams and Fish [24]. [14][2010] QCA 216. [15][2004] QCA 486. [16][2007] QCA 20. [17][2001] QCA 474. [18][2011] QCA 270. [19][2004] QCA 438. [20]District Court of Queensland, 22 July 1997. […
R v Gimm
[2015] QCA 256

…A 44, applied R v Hillier (2007) 228 CLR 618; [2007] HCA 13, applied R v Omid (No 2) [2012] QCA 363, applied R v Richardson [2010] QCA 216, followed COUNSEL: The appellant appeared on his own behalf S J Farnden for the respondent SOLICITORS: The appellant appeared on his own behalf Director of Public Prosecutions…
R v Gadd
[2013] QCA 242 Para 1

…. [6]An authority that has been consistently referred to and applied: R v Riseley; ex parte A-G (Qld) [2009] QCA 285 at [41] and [42]; R v Richardson [2010] QCA 216 at [39] and [40].…
R v Hill
[2012] QCA 59

…set out in the matter of the Queen v McDougall, M-C-D-O-U-G-A-L-L and Collas, C-O-L-L-A-S, [2006] QCA 365, reiterated in the Queen v Richardson [2010] QCA 216. And as I interpret those principles, the relevant factors to be considered are; (a) a consideration of the overall amount of imprisonment to be served by…
R v Gwilliams and Fish
[2010] QCA 286 Para 1

…se was a global sentence of slightly less than eight years imprisonment and without a declaration that any offences were serious violent offences. [5][2010] QCA 216. [6][2008] QCA 378. [7][2000] QCA 85.…
R v Richardson (No 2)
[2010] QCA 278

…] 1 Qd R 526, cited R v Colombo [1995] QCA 083, cited R v Dillon; ex parte A-G (Qld) [2006] QCA 521, cited R v Richardson [2010] QCA 216, related R v Riddell [1997] QCA 005, cited COUNSEL: M J Woodford for the applicant M J Copley SC for the respondent SOLICITORS: Family Law Doyle Keyworth & Harris for the applic…

View all 10 citing cases →

Cases cited in this decision · 27 of 27 shown

R v Riseley; ex parte Attorney-General
[2009] QCA 285 Para 1

…im R 169; [2006] QCA 121; R v Mitchell [2006] QCA 240; R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365; R v Riseley; ex parte A-G (Qld) [2009] QCA 285. [17] R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365. [18](2005) 228 CLR 357; [2005] HCA 25. [19] R v McDougall and Collas [2007] 2 Qd R 87 at…
R v Hillier
[2007] HCA 13

…HCA 53, cited Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13, cited R v Bradford [1997] QCA 391, considered R v Brennan [2001] QCA 253, considered R v Crofts [1999] 1 Qd R 386; [1998] QCA 60, cited R v F [2000] 2 Qd R 331; [1999] QCA 131, cited R v…
R v McDougall and Collas
[2006] QCA 365 Para 1

…v BAX [2005] QCA 365; R v Lewis (2006) 163 A Crim R 169; [2006] QCA 121; R v Mitchell [2006] QCA 240; R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365; R v Riseley; ex parte A-G (Qld) [2009] QCA 285. [17] R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365. [18](2005) 228 CLR 357; [2005] HCA 25. […
R v Mitchell
[2006] QCA 240 Para 1

…2005] 2 Qd R 533; [2005] QCA 223; R v BAW [2005] QCA 334; R v BAX [2005] QCA 365; R v Lewis (2006) 163 A Crim R 169; [2006] QCA 121; R v Mitchell [2006] QCA 240; R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365; R v Riseley; ex parte A-G (Qld) [2009] QCA 285. [17] R v McDougall and Collas [2007] 2 Qd R 8…
R v Lewis
[2006] QCA 121 Para 1

…d [2005] QCA 141; R v Cowie [2005] 2 Qd R 533; [2005] QCA 223; R v BAW [2005] QCA 334; R v BAX [2005] QCA 365; R v Lewis (2006) 163 A Crim R 169; [2006] QCA 121; R v Mitchell [2006] QCA 240; R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365; R v Riseley; ex parte A-G (Qld) [2009] QCA 285. [17] R v McDouga…
R v BAX
[2005] QCA 365 Para 1

…de [2003] QCA 422; R v A [2003] QCA 538; R v Orchard [2005] QCA 141; R v Cowie [2005] 2 Qd R 533; [2005] QCA 223; R v BAW [2005] QCA 334; R v BAX [2005] QCA 365; R v Lewis (2006) 163 A Crim R 169; [2006] QCA 121; R v Mitchell [2006] QCA 240; R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365; R v Riseley;…
R v BAW
[2005] QCA 334 Para 1

…2002] QCA 219; R v Bidmade [2003] QCA 422; R v A [2003] QCA 538; R v Orchard [2005] QCA 141; R v Cowie [2005] 2 Qd R 533; [2005] QCA 223; R v BAW [2005] QCA 334; R v BAX [2005] QCA 365; R v Lewis (2006) 163 A Crim R 169; [2006] QCA 121; R v Mitchell [2006] QCA 240; R v McDougall and Collas [2007] 2 Qd R 87; [2006…
R v Cowie
[2005] QCA 223 Para 1

…igh [2003] 1 Qd R 398; [2002] QCA 219; R v Bidmade [2003] QCA 422; R v A [2003] QCA 538; R v Orchard [2005] QCA 141; R v Cowie [2005] 2 Qd R 533; [2005] QCA 223; R v BAW [2005] QCA 334; R v BAX [2005] QCA 365; R v Lewis (2006) 163 A Crim R 169; [2006] QCA 121; R v Mitchell [2006] QCA 240; R v McDougall and Collas…
Markarian v The Queen
[2005] HCA 25 Para 1

…QCA 365; R v Riseley; ex parte A-G (Qld) [2009] QCA 285. [17] R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365. [18](2005) 228 CLR 357; [2005] HCA 25. [19] R v McDougall and Collas [2007] 2 Qd R 87 at 95; [2006] QCA 365 at [17]. [20]Ibid at 96-97 [19].…
R v Orchard
[2005] QCA 141 Para 1

…) 127 A Crim R 229; [2002] QCA 63; R v Everleigh [2003] 1 Qd R 398; [2002] QCA 219; R v Bidmade [2003] QCA 422; R v A [2003] QCA 538; R v Orchard [2005] QCA 141; R v Cowie [2005] 2 Qd R 533; [2005] QCA 223; R v BAW [2005] QCA 334; R v BAX [2005] QCA 365; R v Lewis (2006) 163 A Crim R 169; [2006] QCA 121; R v Mitc…
R v AR
[2003] QCA 538 Para 1

…] QCA 206; R v DeSalvo (2002) 127 A Crim R 229; [2002] QCA 63; R v Everleigh [2003] 1 Qd R 398; [2002] QCA 219; R v Bidmade [2003] QCA 422; R v A [2003] QCA 538; R v Orchard [2005] QCA 141; R v Cowie [2005] 2 Qd R 533; [2005] QCA 223; R v BAW [2005] QCA 334; R v BAX [2005] QCA 365; R v Lewis (2006) 163 A Crim R 1…
R v Bidmade
[2003] QCA 422 Para 1

…000] 2 Qd R 183; [1999] QCA 206; R v DeSalvo (2002) 127 A Crim R 229; [2002] QCA 63; R v Everleigh [2003] 1 Qd R 398; [2002] QCA 219; R v Bidmade [2003] QCA 422; R v A [2003] QCA 538; R v Orchard [2005] QCA 141; R v Cowie [2005] 2 Qd R 533; [2005] QCA 223; R v BAW [2005] QCA 334; R v BAX [2005] QCA 365; R v Lewis…
MFA v The Queen
[2002] HCA 53 Para 1

…be satisfied beyond reasonable doubt that the accused was guilty of the charged offence. [1](1994) 181 CLR 487; [1994] HCA 63. [2](2002) 213 CLR 606; [2002] HCA 53.…
R v Eveleigh
[2002] QCA 219 Para 1

…998] QCA 280; R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206; R v DeSalvo (2002) 127 A Crim R 229; [2002] QCA 63; R v Everleigh [2003] 1 Qd R 398; [2002] QCA 219; R v Bidmade [2003] QCA 422; R v A [2003] QCA 538; R v Orchard [2005] QCA 141; R v Cowie [2005] 2 Qd R 533; [2005] QCA 223; R v BAW [2005] QCA 334; R v B…
R v DeSalvo
[2002] QCA 63 Para 1

…s161B(3). [16] R v Collins [2000] 1 Qd R 45; [1998] QCA 280; R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206; R v DeSalvo (2002) 127 A Crim R 229; [2002] QCA 63; R v Everleigh [2003] 1 Qd R 398; [2002] QCA 219; R v Bidmade [2003] QCA 422; R v A [2003] QCA 538; R v Orchard [2005] QCA 141; R v Cowie [2005] 2 Qd R 5…
R v Keating
[2002] QCA 19 Para 1

…ng words were used and the victims were very frightened. The applicant had a lengthy criminal history but none apparently for previous robberies. [27][2002] QCA 19.…
R v Irving
[2001] QCA 472 Para 1

…admissions and pleaded guilty. He was aged 38 and was a long term heroin addict. The victims of the crime suffered a great deal of distress. [29][2001] QCA 472.…
R v Brennan
[2001] QCA 253 Para 1

…life, grabbed a stool and hit the applicant with it several times. The applicant left with about $560 and drove off as a passenger in a utility. [28][2001] QCA 253.…
R v Lund
[2000] QCA 85 Para 1

…offences he asked for three counts of armed robbery and two counts of stealing to be taken into account. He had also escaped from lawful custody. [31][2000] QCA 85.…
AB v The Queen
[1999] HCA 46 Para 1

…ggravation of bail and parole breaches and the positive factor of an early plea of guilty. [34] AB v The Queen (1999) 198 CLR 111 at 160 per Hayne J; [1999] HCA 46 at [129].…
R v Bojovic
[1999] QCA 206 Para 1

…ude:[20] [15] Penalties and Sentences Act 1992 (Qld), s161B(3). [16] R v Collins [2000] 1 Qd R 45; [1998] QCA 280; R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206; R v DeSalvo (2002) 127 A Crim R 229; [2002] QCA 63; R v Everleigh [2003] 1 Qd R 398; [2002] QCA 219; R v Bidmade [2003] QCA 422; R v A [2003] QCA 538; R…
R v F
[1999] QCA 131

…Brennan [2001] QCA 253, considered R v Crofts [1999] 1 Qd R 386; [1998] QCA 60, cited R v F [2000] 2 Qd R 331; [1999] QCA 131, cited R v Irving [2001] QCA 472, considered R v Keating [2002] QCA 19, considered R v Lund [2000] QCA 85, followed R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, followed R v…
R v Collins
[1998] QCA 280 Para 1

…not beyond the norm for that offence. They include:[20] [15] Penalties and Sentences Act 1992 (Qld), s161B(3). [16] R v Collins [2000] 1 Qd R 45; [1998] QCA 280; R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206; R v DeSalvo (2002) 127 A Crim R 229; [2002] QCA 63; R v Everleigh [2003] 1 Qd R 398; [2002] QCA 219; R v…
R v Crofts
[1998] QCA 60

…ed R v Bradford [1997] QCA 391, considered R v Brennan [2001] QCA 253, considered R v Crofts [1999] 1 Qd R 386; [1998] QCA 60, cited R v F [2000] 2 Qd R 331; [1999] QCA 131, cited R v Irving [2001] QCA 472, considered R v Keating [2002] QCA 19, considered R v Lund [2000] QCA 85, followed R v McDougall and Collas…
R v Bradford
[1997] QCA 391 Para 1

…med with an offensive weapon and he had also been convicted of an assault occasioning bodily harm. The range was said to be eight to ten years. [30][1997] QCA 391.…
M v the Queen
[1994] HCA 63 Para 1

…decide if it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the charged offence. [1](1994) 181 CLR 487; [1994] HCA 63. [2](2002) 213 CLR 606; [2002] HCA 53.…
Mill v The Queen
[1988] HCA 70 Para 1

…hat he had committed two armed robberies within three months and the totality principle would operate.[10] [10] Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70; R v Crofts [1999] 1 Qd R 386 at 387; (1998) 100 A Crim R 503; R v F [2000] 2 Qd R 331 at 332 per Pincus JA.…

Legislation cited in this decision · 2

Corrective Services Act 2006 (Qld)
182(2), 184(2), 185(4) 3 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
161B(3) 2 mentions (from Para 1)

CITATION:	R v Richardson [2010] QCA 216
PARTIES:	R v RICHARDSON, Jamie Kenneth (appellant/applicant)
FILE NO/S:	CA No 287 of 2009 CA No 79 of 2010 DC No 2001 of 2009 DC No 2067 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	20 August 2010
DELIVERED AT:	Brisbane
HEARING DATE:	25 May 2010
JUDGES:	Fraser and White JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal against conviction is dismissed. 2. The application for leave to appeal against sentence is granted. 3. The appeal is allowed and the sentences imposed below set aside. 4. The appellant is sentenced to: a. eight years imprisonment for the armed robbery in company committed on 20 September 2007; b. seven years imprisonment for the robbery committed on 31 December 2007; c. 18 months imprisonment for the unlawful use of a motor vehicle to facilitate the commission of an indictable offence; and d. 18 months imprisonment for the dangerous operation of a vehicle. All sentences to be served concurrently.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where appellant convicted after trial of one count of robbery whilst pretending to be armed with a firearm and in company – where evidence implicating the appellant was a DNA sample – where evidence before court of possibility of secondary transference of DNA – whether jury were entitled to exclude the possibility of secondary transference as an explanation consistent with the appellant’s innocence CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where sentencing judge re-opened another sentence of imprisonment for armed robbery imposed on the applicant because the sentencing judge in that matter had not been referred to the applicant’s criminal history in New South Wales – where sentencing judge imposed a term of imprisonment of five years for this armed robbery and declared it to be a serious violent offence pursuant to s 161B(3) of the Penalties and Sentences Act 1992 (Qld) – where sentencing judge imposed a cumulative term of imprisonment of four years for the offences in relation to the re-opened sentence – whether the serious violent offence declaration should have been made – whether the sentences taken together and applying the totality principle were too high, even without with the declaration – whether sentence manifestly excessive Corrective Services Act 2006 (Qld), s 182(2), s 184(2), s 185(4) Penalties and Sentences Act 1992 (Qld), s 161B(3), s 188 AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited MFA v The Queen (2002)…