R v Robertson

Case [2010] QCA 319


SUPREME COURT OF QUEENSLAND

CITATION:

R v Robertson [2010] QCA 319

PARTIES:

R
v
ROBERTSON, Neil James
(applicant)

FILE NO/S:

CA No 100 of 2010
SC No 241 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:


Supreme Court at Brisbane

DELIVERED ON:

16 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

26 October 2010

JUDGES:

Holmes and Fraser JJA and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Grant the application for leave to appeal;1.   

Allow the appeal;2.   

Vary the sentence imposed for the conviction of manslaughter in relation to count 1 on the indictment by substituting a sentence of 12 years’ imprisonment for the sentence of 14 years’ imprisonment imposed by the trial judge; and,a.   

Vary the sentence imposed in relation to count 2 on the indictment by substituting a sentence of 10 years’ imprisonment for the sentence of 12 years’ imprisonment imposed by the trial judge;b.   

In all other respects confirm the orders made by the trial judge.3.          

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of manslaughter (count 1), dangerous operation of a motor vehicle causing grievous bodily harm with circumstances of aggravation (count 2) and three counts of assaults occasioning bodily harm (counts 3, 4 and 5) – where on arraignment the applicant entered a plea of not guilty to murder but guilty to the alternative charge of dangerous operation of a motor vehicle causing death with circumstances of aggravation – where the plea was not accepted by the prosecution – where the applicant pleaded guilty to count 2 and not guilty to counts 3, 4 and 5 – where the jury found the applicant not guilty of murder but guilty of manslaughter and guilty of counts 3, 4 and 5 – where the jury did not consider that provocation was a factor in the verdict returned on count 1 – where the trial judge sentenced the applicant to 14 years imprisonment for count 1, concurrent with 12 years imprisonment for count 2, and 5 years imprisonment respectively for counts 3, 4 and 5 – where the sentence on count 1 was deemed a serious violent offence in accordance with s 161A of the Penalties and Sentences Act 1992 (Qld) – where the applicant appealed the sentences imposed on counts 1 and 2 – whether the sentences of imprisonment imposed on counts 1 and 2 were manifestly excessive – whether it was open to the trial judge to regard the applicant’s offending as more serious than that of R v Clark [2009] QCA 361

Corrective Services Act 2006 (Qld), s 182(1), s 182(2)
Crimes Act 1958 (Vic), s 5
Crimes Act 1900 (NSW), s 24
Criminal Code 1899 (Qld), s 302(1)(a), s 310, s 328A(4)(b), s 328A(4)(c)
Criminal Code 1913 (WA), s 280
Penalties and Sentences Act

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Details
AGLC
R v Robertson [2010] QCA 319
Case
[2010] QCA 319
Decision Date

CaseChat Overview and Summary

In the case of R v Robertson, the applicant, who was convicted of manslaughter, dangerous operation of a motor vehicle causing grievous bodily harm, and three counts of assaults occasioning bodily harm, appealed against the sentences imposed on counts 1 and 2. The applicant was initially convicted of manslaughter and dangerous operation of a motor vehicle causing death, but the jury did not consider provocation a factor in the verdict. The trial judge sentenced the applicant to 14 years imprisonment for manslaughter and 12 years imprisonment for dangerous operation of a motor vehicle, both sentences to be served concurrently. The applicant appealed the severity of the sentences, arguing that they were manifestly excessive. The court was required to decide whether the sentences imposed on counts 1 and 2 were manifestly excessive, and whether it was open to the trial judge to regard the applicant’s offending as more serious than that of R v Clark [2009] QCA 361.

The court found that the sentences imposed on counts 1 and 2 were manifestly excessive and that it was open to the trial judge to regard the applicant’s offending as more serious than that of R v Clark [2009] QCA 361. The court noted that the trial judge had not erred in principle in the approach taken to the sentencing process, but the overall sentence was manifestly excessive. The court held that the sentence imposed for the conviction of manslaughter should be reduced from 14 years to 12 years imprisonment, and the sentence imposed in relation to the dangerous operation of a motor vehicle should be reduced from 12 years to 10 years imprisonment. The court also confirmed the sentences imposed for counts 3, 4, and 5.

The court granted the application for leave to appeal and allowed the appeal, varying the sentences imposed for counts 1 and 2. The sentence for count 1 was reduced from 14 years imprisonment to 12 years imprisonment, and the sentence for count 2 was reduced from 12 years imprisonment to 10 years imprisonment. In all other respects, the orders made by the trial judge were confirmed.

Orders

Orders of the court

Grant the application for leave to appeal;1.

Allow the appeal;2.

Vary the sentence imposed for the conviction of manslaughter in relation to count 1 on the indictment by substituting a sentence of 12 years’ imprisonment for the sentence of 14 years’ imprisonment imposed by the trial judge; and,a.

Vary the sentence imposed in relation to count 2 on the indictment by substituting a sentence of 10 years’ imprisonment for the sentence of 12 years’ imprisonment imposed by the trial judge;b.

In all other respects confirm the orders made by the trial judge.3.

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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