R v Schuurs - [2000] QCA 278

[2000] QCA 278

COURT OF APPEAL

DAVIES JA
McPHERSON JA
MULLINS J

[R v Schuurs]

CA No 403 of 1999

THE QUEEN

CLAYTON CECIL SCHUURS Applicant

BRISBANE

..DATE 14/07/2000

JUDGMENT

DAVIES JA: The applicant was convicted of manslaughter after a trial on 14 October last. On 4 November, he was sentenced to 10 years imprisonment. The consequence of this under part 9A of the Penalties and Sentences Act 1992 is that, the offence being one against a provision mentioned in the schedule, the applicant was convicted of a serious violent offence. He seeks leave to appeal against that sentence.

There are two arguments which Mr Rafter for the applicant advanced. The first is that, having regard to comparable sentences, and he took us to a number of sentences none of which, as he correctly conceded, were closely comparable to this case, that the sentence here was manifestly excessive. And the second submission made by Mr Rafter was that there was a lack of parity between the sentence imposed on the applicant and that imposed on his co-offender Mitchell.

The circumstances of the offence was that the three accused persons, Semyraha, the applicant and Mitchell, went to the house of the deceased, so they said, to collect a debt of $1500 which it appears was a debt arising out of drug dealing. To that end, the applicant supplied a car which he drove to the scene and a 22 calibre rifle and ammunition with which it was apparently intended to shoot the deceased in the leg if he did not pay.

At the deceased's house it was the applicant who confronted the deceased and demanded payment. According to the applicant, the deceased then retired into the house and returned armed with a knife in each hand. The applicant then retreated to a position behind the car and instructed Semyraha to shoot the deceased in the leg. Semyraha did shoot the deceased but did so in the chest killing him.

Both the applicant and Mitchell were guilty of manslaughter, Mitchell after pleading guilty, the applicant after the completion of the trial against him and Semyraha. I mention only that it seems to me that the applicant was fortunate not to have been convicted of murder.

There were a number of factors which, in my view, made the applicant's conduct more serious than that of Mitchell. The first of these was the supply of the car and the rifle and ammunition, the second was the confrontation by the applicant of the deceased and the third is the instruction by the applicant to Semyraha to shoot the deceased.

The learned sentencing Judge, in my view quite rightly, concluded that that made the applicant's conducted more serious than that of Mitchell. In addition, as I have mentioned, Mitchell pleaded guilty but, presumably, that was taken into account at least partly in the recommendation which his Honour made for parole in her case after four years.

His Honour, incidentally, concluded that there was no indication…

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 Schuurs

Details

AGLC: R v Schuurs [2000] QCA 278
Case: [2000] QCA 278
Decision Date: 14/07/2000

CaseChat Overview and Summary

Clayton Cecil Schuurs was convicted of manslaughter by a trial court and subsequently sentenced to ten years imprisonment. Schuurs applied for leave to appeal against the sentence, arguing that it was manifestly excessive and that there was a lack of parity between his sentence and that imposed on his co-offender, Mitchell. The applicant was part of a group that went to the deceased's house to collect a debt arising from drug dealing. The applicant supplied a car and a rifle and ammunition with the intention of shooting the deceased if he did not pay. Schuurs was found to be more culpable than Mitchell due to his role in supplying the car and the rifle, confronting the deceased, and instructing another to shoot the deceased. The court found that the sentence imposed on Schuurs was appropriate and that there was no lack of parity with the sentence imposed on Mitchell. The court refused the application for leave to appeal.

The court considered two arguments made by the applicant. Firstly, the applicant argued that the sentence was manifestly excessive when compared to other cases. However, the court found that the cases cited by the applicant were not closely comparable and therefore not useful in determining the appropriate sentence in this case. Secondly, the applicant argued that there was a lack of parity between his sentence and that imposed on Mitchell. The court found that the difference in the sentences imposed on the applicant and Mitchell was due to the fact that the applicant's sentence was classified as a serious violent offence, making him ineligible for parole until he had served 8 years of the 10 year term. However, the court found that this factor should be ignored when considering parity of sentencing. The court found that there was no lack of parity in the sentences imposed on the applicant and Mitchell.

The court found that the applicant's conduct was more serious than that of Mitchell due to his role in supplying the car and the rifle, confronting the deceased, and instructing another to shoot the deceased. The court found that the applicant was fortunate not to have been convicted of murder. The court found that the sentence imposed on the applicant was appropriate and that there was no lack of parity with the sentence imposed on Mitchell. The court refused the application for leave to appeal.

The application is refused.

Orders