R v Richmond-Sinclair - [2009] QCA 98

SUPREME COURT OF QUEENSLAND

CITATION:

R v Richmond-Sinclair [2009] QCA 98

PARTIES:

R
v
RICHMOND-SINCLAIR, Alexandre Geraud
(applicant)

FILE NO/S:

CA No 215 of 2008
DC No 1148 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

2 April 2009

JUDGES:

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

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 OR INADEQUATE – where applicant stomped on victim’s head whilst he was in prison for a separate offence – where applicant charged with murder but convicted of the lesser offence of manslaughter – where applicant sentenced to 12 years imprisonment – whether requirement that the applicant serve 80 per cent of the 12 year sentence unjust in all the circumstances – whether the sentence fell outside the appropriate range of nine to 10 years – whether the circumstances of the offence warranted the making of a serious violent offender declaration – whether sentence manifestly excessive

R v Dwyer[2008] QCA 117, considered
R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited
R v Mills[2008] QCA 146, cited
R v Mooka[2007] QCA 36, cited
R v Sanderson[2003] QCA 338, distinguished
R v Sebo; ex parte Attorney-General (Qld) (2007) 179 A Crim R 24; [2007] QCA 426, distinguished

COUNSEL:

D Boddice SC, with E J Williams, for the applicant (pro bono)
M B Lehane for the respondent

SOLICITORS:

No appearance for the applicant
Director of Public Prosecutions (Qld) for the respondent

MUIR JA:I agree with the reasons of Fraser JA and with the order he proposes.

FRASER JA: After a seven day trial on a charge of murder, on 28 July 2008 a jury found the applicant not guilty of murder but guilty of manslaughter. The jury returned a special verdict that it found the applicant guilty of manslaughter on the basis that he had stomped on his victim's head (rather than by causing his victim to fall). On 21 August 2008 the trial judge sentenced the applicant to 12 years imprisonment, declared that the applicant had committed a serious violent offence, and declared that 688 days spent by the applicant in pre-sentence custody was deemed to be time already served under the sentence.

The judge also found proved a breach of an intensive correction order imposed in respect of an armed robbery the applicant had committed on 8 April 2005 and re-sentenced the applicant to 18 months imprisonment for that offence, that imprisonment to be served concurrently with the term for manslaughter.

The applicant filed a notice of appeal against his conviction for manslaughter and an application for leave to appeal against sentence, but the applicant abandoned…

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 Richmond-Sinclair

Details

AGLC: R v Richmond-Sinclair [2009] QCA 98
Case: [2009] QCA 98
Decision Date: 24 April 2009

CaseChat Overview and Summary

In the matter of R v Richmond-Sinclair, the applicant appealed against his sentence, arguing that it was manifestly excessive. The applicant had been convicted of manslaughter after stomping on a victim's head while in prison for a separate offence. The applicant was sentenced to 12 years imprisonment, with a requirement to serve 80 per cent of this sentence. He argued that the sentence was unjust and fell outside the appropriate range of nine to 10 years. Additionally, the applicant challenged the making of a serious violent offender declaration.

The legal issues before the court were whether the applicant's sentence was manifestly excessive or inadequate and whether the circumstances of the offence warranted the making of a serious violent offender declaration. The court considered the principles of sentencing, the seriousness of the offence, and the need for general and specific deterrence.

The court found that the applicant's sentence was not manifestly excessive or inadequate. It held that the seriousness of the offence, the need for general and specific deterrence, and the applicant's previous criminal history justified the sentence. The court also found that the making of a serious violent offender declaration was appropriate given the circumstances of the offence. The court held that the applicant had not demonstrated that the sentence was unjust in all the circumstances or that it fell outside the appropriate range.

The court refused the application for leave to appeal against sentence.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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 Richmond-Sinclair [2009] QCA 98
PARTIES:	R v RICHMOND-SINCLAIR, Alexandre Geraud (applicant)
FILE NO/S:	CA No 215 of 2008 DC No 1148 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	24 April 2009
DELIVERED AT:	Brisbane
HEARING DATE:	2 April 2009
JUDGES:	Muir and Fraser JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
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 OR INADEQUATE – where applicant stomped on victim’s head whilst he was in prison for a separate offence – where applicant charged with murder but convicted of the lesser offence of manslaughter – where applicant sentenced to 12 years imprisonment – whether requirement that the applicant serve 80 per cent of the 12 year sentence unjust in all the circumstances – whether the sentence fell outside the appropriate range of nine to 10 years – whether the circumstances of the offence warranted the making of a serious violent offender declaration – whether sentence manifestly excessive R v Dwyer[2008] QCA 117, considered R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited R v Mills[2008] QCA 146, cited R v Mooka[2007] QCA 36, cited R v Sanderson[2003] QCA 338, distinguished R v Sebo; ex parte Attorney-General (Qld) (2007) 179 A Crim R 24; [2007] QCA 426, distinguished
COUNSEL:	D Boddice SC, with E J Williams, for the applicant (pro bono) M B Lehane for the respondent
SOLICITORS:	No appearance for the applicant Director of Public Prosecutions (Qld) for the respondent