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R v Robertson

R v Robertson

Case [2010] QCA 319 16 November 2010

Appeal

Sentencing

Manslaughter

Dangerous Operation of a Motor Vehicle

Aggravated Circumstances

Criminal Law

Type to search within this case.

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

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 Robertson

Details

AGLC: R v Robertson [2010] QCA 319
Case: [2010] QCA 319
Decision Date: 16 November 2010

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

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 Robertson [2010] QCA 319

Most Recent Citation

R v Derks [2011] QCA 295

Cases citing this decision · 7 of 7 shown

R v Johnston
[2025] QCA 112 Para 12

…rdsticks,[1] although it was accepted that the circumstances for sentencing for manslaughter offences were infinitely variable. [1] R v Robertson [2010] QCA 319; R v Kirke [2020] QCA 53; R v Folland [2004] QCA 209.…
R v Hughes
[2025] QCA 72 Para 5

…The primary judge noted in the sentencing remarks that reference had been made to R v Folland [2004] QCA 209, R v Clark [2009] QCA 361, R v Robertson [2010] QCA 319, R v Derks [2011] QCA 295, R v Pavey-Rees [2020] QCA 29, R v Kirke [2020] QCA 53 and R v YTZ; Ex parte Attorney-General (Qld); R v YTZ [2023] QCA 87.…
Director of Public Prosecutions v Barrett
[2023] ACTSC 260

…Ngerengere (No 3) [2016] ACTSC 299 R v Ogle (No 2) [2018] ACTSC 126 R v Pham [2015] HCA 39; 256 CLR 550 R v Richardson [2016] ACTSC 133 R v Robertson [2010] QCA 319 R v Samani [2016] ACTCA 48 R v Smith [2019] ACTSC 65 R v Snowden [2022] ACTSC 186 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 R v Towle [2009] VSCA 280…
R v Pavey-Rees
[2020] QCA 29 Para 10

…iate sentence was one of 10 years imprisonment with the automatic serious violent offence declaration. [1][1999] QCA 296. [2][2009] QCA 361. [3][2010] QCA 319. [4][2011] QCA 295. [5][2013] QCA 353. Manifest excess?…
R v Glenbar
[2013] QCA 353 Para 1

…ullins J, 19 November 2012. [18]Unreported, Supreme Court of Queensland, Indictment Nos 399 of 2010 and 657 of 2011, Mullins J, 10 August 2011. [19][2010] QCA 319.…
R v Henderson; Ex parte Attorney-General (Qld)
[2013] QCA 63 Para 1

…r and 12 years for the dangerous driving causing grievous bodily harm were reduced on appeal to 12 years and 10 years respectively. [28][2010] QCA 319.…
R v Derks
[2011] QCA 295 Para 1

…v Frost; ex parte A-G ;[2] R v Clark [3] and R v Robertson .[4] [1][1999] QCA 296. [2](2004) 149 A Crim R 151; [2004] QCA 309. [3][2009] QCA 361. [4][2010] QCA 319.…

View all 7 citing cases →

Cases cited in this decision · 28 of 28 shown

R v Oliver
[2024] NSWSC 1571 Para 1

…step up is warranted. In my view the applicant has demonstrated that the sentence imposed by the primary judge is outside the range open. [36]See R v Oliver (1980) 7 A Crim R 174 at 177, Street CJ (Begg and Slattery JJ agreeing).…
Bombardieri v R
[2010] NSWCCA 161 Para 1

…ss of 10 years are rare: Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48 [80]-[87] per Buss JA;[28] Bombardieri v The Queen [2010] NSWCCA 161 at [19]; [40]-[49].[29] I do not think that the sentencing norms in those States are so different as to make the accumulated experience of those juri…
R v Glyn Morgan Jones; R v Anthony Joseph Luis Hili
[2010] NSWCCA 108

…nd [2004] QCA 209, discussed R v Goodger [2009] QCA 377, cited R v Janz [2008] QCA 55, cited R v Jones & Hili [2010] NSWCCA 108, cited R v Kelly [1999] QCA 296, discussed R v Lavender (2005) 222 CLR 67; [2005] HCA 37, cited R v Martin (2007) 20 VR 14; [2007] VSCA 291, discussed R v Matthews [2007] QCA 144, cited R v…
Young v R
[2009] NSWCCA 298 Para 1

…e offence was out of character, that he was genuinely remorseful, and that he had good prospects of rehabilitation and was unlikely to re-offend. [34][2009] NSWCCA 298.…
R v Goodger
[2009] QCA 377 Para 1

…ment: s 310 of the Criminal Code 1899 (Qld). [15][2009] QCA 361 at [23]. [16]See R v Tsiaras [1996] 1 VR 398 at 400 and R v Goodger [2009] QCA 377 at [21]. [17]See, for example, R v Goodger [2009] QCA 377 at [25]-[26]. [18]C.f. R v Janz [2008] QCA 55 per Mackenzie AJA at [46]-[47].…
R v Clark
[2009] QCA 361 Para 1

…ghter was life imprisonment, an appropriate effective sentence, taking into the applicant’s pleas of guilty, would be 14 years imprisonment. [4][2009] QCA 361.…
R v Black
[2009] QCA 198

…999] HCA 29, cited Penny v The State of Western Australia (2006) 33 WAR 48; [2006] WASCA 173, cited R v Black [2009] QCA 198, cited R v Borkowski [2009] NSWCCA 102, discussed R v Burton , unreported, Andrews ACJ, Connolly and Carter JJ, Supreme Court of Criminal Appeal Queensland, No. 91 of 1983, 20 July 1983, di…
R v Mallie; ex parte A-G (Qld)
[2009] QCA 109 Para 46

…[9](2002) 127 A Crim R 229 at 231, point [11]. See also R v Black [2009] QCA 109 at [46]-[48].…
R v Robert Borkowski
[2009] NSWCCA 102 Para 1

…street racing case, where the offender faced two counts of manslaughter, had a criminal and traffic history of significance, and pleaded guilty. [31][2009] NSWCCA 102.…
R v Janz
[2008] QCA 55 Para 1

…398 at 400 and R v Goodger [2009] QCA 377 at [21]. [17]See, for example, R v Goodger [2009] QCA 377 at [25]-[26]. [18]C.f. R v Janz [2008] QCA 55 per Mackenzie AJA at [46]-[47].…
R v Martin
[2007] VSCA 291 Para 1

…berately as a weapon. The drug affected state of the offender was held to be relevant as an aggravating, not mitigating, factor. [32](2007) 20 VR 14; [2007] VSCA 291. [33]In Victoria the maximum sentence for manslaughter is 20 years imprisonment with or without a fine: s 5 Crimes Act 1958 (Vic).…
R v Matthews
[2007] QCA 144

…r (2005) 222 CLR 67; [2005] HCA 37, cited R v Martin (2007) 20 VR 14; [2007] VSCA 291, discussed R v Matthews [2007] QCA 144, cited R v Oliver (1980) 7 A Crim R 174, cited R v Mooka [2007] QCA 36, cited R v Tsiaras [1996] 1 VR 398, cited R v Whiting; ex parte Attorney-General [1995] 2 Qd R 199; [1994] QCA 425, ci…
Lawler v R
[2007] NSWCCA 85

…ties and Sentences Act 1992 (Qld), s 161A Bombardieri v The Queen [2010] NSWCCA 161, cited Lawler v the Queen [2007] NSWCCA 85, discussed Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29, cited Penny v The State of Western Australia (2006) 33 WAR 48; [2006] WASCA 173, cited R v Black [2009] QCA 198, cited R v…
R v Mooka
[2007] QCA 36 Para 1

…ic serious violent offence declaration, with the sentence in Clark of nine years imprisonment with no such declaration. [21]See R v Mooka [2007] QCA 36 per the Chief Justice at p 9 and R v Whiting; ex parte Attorney-General of Queensland [1994] QCA 425 per Davies JA, McPherson JA and Derrington J at p 7.…
Penny v The State of Western Australia
[2006] WASCA 249

…d Lawler v the Queen [2007] NSWCCA 85, discussed Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29, cited Penny v The State of Western Australia (2006) 33 WAR 48; [2006] WASCA 173, cited R v Black [2009] QCA 198, cited R v Borkowski [2009] NSWCCA 102, discussed R v Burton , unreported, Andrews ACJ, Connolly and Carter JJ, Supreme Court of…
Penny v The State of Western Australia
[2006] WASCA 173 Para 1

…ecisions in driving manslaughter cases in other States suggests that sentences in excess of 10 years are rare: Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48 [80]-[87] per Buss JA;[28] Bombardieri v The Queen [2010] NSWCCA 161 at [19]; [40]-[49].[29] I do not think that the sentencing nor…
R v Corry
[2006] QCA 203 Para 1

…ffending and other circumstances in Corry and Eade was so very different from that here as to render those decisions of no real assistance. [10][2006] QCA 203. [11][2005] QCA 148. [12][2006] QCA 203 per Keane JA, with whose reasons Jerrard JA and Helman J agreed, at [26].…
R v Lavender
[2005] HCA 37

…008] QCA 55, cited R v Jones & Hili [2010] NSWCCA 108, cited R v Kelly [1999] QCA 296, discussed R v Lavender (2005) 222 CLR 67; [2005] HCA 37, cited R v Martin (2007) 20 VR 14; [2007] VSCA 291, discussed R v Matthews [2007] QCA 144, cited R v Oliver (1980) 7 A Crim R 174, cited R v Mooka [2007] QCA 36, cited R v Ts…
R v Eade
[2005] QCA 148 Para 1

…ircumstances in Corry and Eade was so very different from that here as to render those decisions of no real assistance. [10][2006] QCA 203. [11][2005] QCA 148. [12][2006] QCA 203 per Keane JA, with whose reasons Jerrard JA and Helman J agreed, at [26].…
R v Folland
[2004] QCA 209 Para 1

…an opportunity of demonstrating rehabilitation which is not open to offenders who face the consequences of their actions. [5][1999] QCA 296. [6][2004] QCA 209.…
R v DeSalvo
[2002] QCA 63

…R v Clark [2009] QCA 361, discussed R v Corry [2006] QCA 203, discussed R v DeSalvo (2002) 127 A Crim R 229; [2002] QCA 63, cited R v Eade [2005] QCA 148, discussed R v Folland [2004] QCA 209, discussed R v Goodger [2009] QCA 377, cited R v Janz [2008] QCA 55, cited R v Jones & Hili [2010] NSWCCA 108, cited R v…
R v Kelly
[1999] QCA 296 Para 1

…create for himself an opportunity of demonstrating rehabilitation which is not open to offenders who face the consequences of their actions. [5][1999] QCA 296. [6][2004] QCA 209.…
R v Jiminez
[1999] NSWCCA 7 Para 1

…aughter offence is life imprisonment: s 310 of the Criminal Code 1899 (Qld). [15][2009] QCA 361 at [23]. [16]See R v Tsiaras [1996] 1 VR 398 at 400 and R v Goodger [2009] QCA 377 at [21]. [17]See, for example, R v Goodger [2009] QCA 377 at [25]-[26]. [18]C.f. R v Janz [2008] QCA 55 per Mackenzie AJA at [46]…
R v Whiting; ex parte Attorney-General
[1994] QCA 425 Para 1

…o such declaration. [21]See R v Mooka [2007] QCA 36 per the Chief Justice at p 9 and R v Whiting; ex parte Attorney-General of Queensland [1994] QCA 425 per Davies JA, McPherson JA and Derrington J at p 7.…
Veen v The Queen (No 2)
[1988] HCA 14

…x parte Attorney-General [1995] 2 Qd R 199; [1994] QCA 425, cited Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14, cited Young v The Queen [2009] NSWCCA 298, discussed COUNSEL: C W Heaton for the applicant M B Lehane for the respondent SOLICITORS: Legal Aid Queensland for the applicant Director of Publ…
House v R
[1936] HCA 40

…etion for another, where error has not been shown. That error must be either identifiable or manifest from the sentence imposed: House v The King [1936] HCA 40; (1936) 55 CLR 499. Manifest error is not to be equated with mere inadequacy or excess. But manifest error is fundamentally intuitive. It arises because…
Lowndes v The Queen
[1999] HCA 299

…(Qld), s 161A Bombardieri v The Queen [2010] NSWCCA 161, cited Lawler v the Queen [2007] NSWCCA 85, discussed Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29, cited Penny v The State of Western Australia (2006) 33 WAR 48; [2006] WASCA 173, cited R v Black [2009] QCA 198, cited R v Borkowski [2009] NSWCCA 102, discussed…
[1999] HCA 29
[1999] HCA 29

…010] NSWCCA 161, cited Lawler v the Queen [2007] NSWCCA 85, discussed Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29, cited Penny v The State of Western Australia (2006) 33 WAR 48; [2006] WASCA 173, cited R v Black [2009] QCA 198, cited R v Borkowski [2009] NSWCCA 102, discussed R v Burton , unreported, A…

Legislation cited in this decision · 4

Crimes Act 1900 (ACT)
24 2 mentions (from Para 1)
Crimes Act 1958 (Vic)
5 2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
161A 2 mentions
Corrective Services Act 2006 (Qld)
182(1) 1 mention

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