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

SUPREME COURT OF QUEENSLAND

CITATION:

R v Riseley; ex parte A-G (Qld) [2009] QCA 285

PARTIES:

R
v
RISELEY, Matthew Andrew
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

R
v
RISELEY, Matthew Andrew
(applicant)

FILE NO/S:

CA No 155 of 2009
CA No 160 of 2009
SC No 1090 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)
Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

11 September 2009

JUDGES:

McMurdo P, Keane and Holmes JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

In CA No 155 of 2009:

1.   Appeal dismissed

In CA No 160 of 2009:

1.   Application for leave to appeal against sentence granted

2.   Appeal allowed to the extent of setting aside the serious violent offence declaration and setting a parole eligibility date at 13 May 2011

CATCHWORDS:

CRIMINAL LAW – SENTENCE – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – SERIOUS OR VIOLENT OFFENDER – where applicant convicted on own plea of manslaughter – where victim 19 day old baby – where applicant acted out of weariness and frustration – where applicant failed to obtain medical aid for victim until morning after incident – whether offence beyond "norm" – whether serious violence offence declaration manifestly excessive

Corrective Services Act 2006 (Qld), s 182
Criminal Code 1899 (Qld), s 669A

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, cited
Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited
R v AR[2003] QCA 538, cited
R v Chard; ex parte A-G (Qld)[2004] QCA 372, considered
R v Hall; ex parte Attorney-General of Qld[2002] QCA 125, considered
R v Irvine & Attorney-General of Queensland[1997] QCA 138, cited
R v KU & Ors; ex parte A-G (Qld)[2008] QCA 154, cited
R v Lacey; ex parte A-G (Qld)[2009] QCA 274, cited
R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, considered
R v Potter; ex parte A-G (Qld) (2008) 183 A Crim R 497; [2008] QCA 91, cited

COUNSEL:

In CA No 155 of 2009:
A W Moynihan SC, with L P T C Brisick, for the appellant
D C Shepherd for the respondent

In CA No 160 of 2009:
D C Shepherd for the applicant
A W Moynihan SC, with L P T C Brisick, for the respondent

SOLICITORS:

In CA No 155 of 2009:
Director of Public Prosecutions (Queensland) for the appellant
Legal Aid Queensland for the respondent

In CA No 160 of 2009:
Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: The Attorney-General's appeal should be dismissed. The respondent's application for leave to appeal against sentence should be granted and his appeal allowed, but only to the extent of setting aside…

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: [2009] QCA 285
Decision Date: 22 September 2009

CaseChat Overview and Summary

In the case of R v Riseley; ex parte Attorney-General, the applicant, Riseley, was convicted of manslaughter for the death of his 19-day-old baby. The Attorney-General applied for a serious violent offence declaration and certain orders under the Sentencing Act 1991 (Vic). Riseley sought to appeal against the seriousness declaration and the sentence, claiming that it was manifestly excessive.

The primary legal issues before the court were whether the offence was beyond the norm and whether the serious violent offence declaration was manifestly excessive. The court had to consider the nature and circumstances of the offence, the applicant's conduct, and the appropriate sentence in light of the statutory provisions. The court also needed to determine if the declaration was appropriate under the relevant legislation and whether the parole eligibility date was correctly set.

The court found that the applicant's actions were indeed outside the norm, given the circumstances of the case, but the seriousness declaration was considered manifestly excessive. The court held that the applicant's actions, although tragic, were not comparable to other serious violent offences, and the declaration was not warranted. The court also set a parole eligibility date at 13 May 2011, considering the circumstances of the case and the appropriate sentence under the legislation.

The final orders were that the appeal in CA No 155 of 2009 was dismissed, while in CA No 160 of 2009, the application for leave to appeal against the sentence was granted, and the appeal was allowed to the extent of setting aside the serious violent offence declaration and setting a parole eligibility date at 13 May 2011.

Orders

Orders of the court

In CA No 155 of 2009:

1. Appeal dismissed

In CA No 160 of 2009:

1. Application for leave to appeal against sentence granted

2. Appeal allowed to the extent of setting aside the serious violent offence declaration and setting a parole eligibility date at 13 May 2011

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 Riseley; ex parte A-G (Qld) [2009] QCA 285
PARTIES:	R v RISELEY, Matthew Andrew (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant) R v RISELEY, Matthew Andrew (applicant)
FILE NO/S:	CA No 155 of 2009 CA No 160 of 2009 SC No 1090 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld) Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	22 September 2009
DELIVERED AT:	Brisbane
HEARING DATE:	11 September 2009
JUDGES:	McMurdo P, Keane and Holmes JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	In CA No 155 of 2009: 1. Appeal dismissed In CA No 160 of 2009: 1. Application for leave to appeal against sentence granted 2. Appeal allowed to the extent of setting aside the serious violent offence declaration and setting a parole eligibility date at 13 May 2011
CATCHWORDS:	CRIMINAL LAW – SENTENCE – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – SERIOUS OR VIOLENT OFFENDER – where applicant convicted on own plea of manslaughter – where victim 19 day old baby – where applicant acted out of weariness and frustration – where applicant failed to obtain medical aid for victim until morning after incident – whether offence beyond "norm" – whether serious violence offence declaration manifestly excessive Corrective Services Act 2006 (Qld), s 182 Criminal Code 1899 (Qld), s 669A Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, cited Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited R v AR[2003] QCA 538, cited R v Chard; ex parte A-G (Qld)[2004] QCA 372, considered R v Hall; ex parte Attorney-General of Qld[2002] QCA 125, considered R v Irvine & Attorney-General of Queensland[1997] QCA 138, cited R v KU & Ors; ex parte A-G (Qld)[2008] QCA 154, cited R v Lacey; ex parte A-G (Qld)[2009] QCA 274, cited R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, considered R v Potter; ex parte A-G (Qld) (2008) 183 A Crim R 497; [2008] QCA 91, cited
COUNSEL:	In CA No 155 of 2009: A W Moynihan SC, with L P T C Brisick, for the appellant D C Shepherd for the respondent In CA No 160 of 2009: D C Shepherd for the applicant A W Moynihan SC, with L P T C Brisick, for the respondent
SOLICITORS:	In CA No 155 of 2009: Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent In CA No 160 of 2009: Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent