R v. Sebo; ex parte A-G (Qld) - [2007] QCA 426

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sebo; ex parte A-G (Qld) [2007] QCA 426

PARTIES:

R
v
SEBO, Damian Karl
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 170 of 2007
SC No 977 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

20 November 2007

JUDGES:

Keane and Holmes JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – where the respondent was convicted by a jury of the manslaughter of his 16 year old girlfriend – where the respondent was sentenced to 10 years with a declaration that the conviction was one of a serious violent offence – where the appellant contends that the sentence was manifestly inadequate

Penalties and Sentences Act 1992 (Qld), s 9(3)

R v Auberson [1996] QCA 321; CA Nos 248 & 249 of 1996, 3 September 1996, considered
R v DeSalvo (2002) 127 A Crim R 229, considered
R v George; Ex parte Attorney-General (Qld) [2004] QCA 450; CA No 316 of 2004, 26 November 2004, considered
R v Matthews[2007] QCA 144; CA No 21 of 2007, 4 May 2007, considered
R v Ogborne[2006] QCA 236; CA 232 of 2005, 23 June 2006, distinguished
R v Sanderson[2003] QCA 338; CA No 40 of 2003, 8 August 2003, distinguished
R v Schubring; Ex parte Attorney-General (Qld) [2005] 1 Qd R 515, distinguished
R v Whiting; Ex parte Attorney-General [1995] 2 Qd R 199, considered

COUNSEL:

R G Martin SC for the appellant
A W Moynihan SC, with S L Crofton, for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the respondent
Legal Aid Queensland for the respondent

KEANE JA: I agree with the reasons of Holmes JA and with the order proposed by her Honour.

HOLMES JA: After being convicted by a jury of the manslaughter of his 16 year old girlfriend, the respondent was sentenced to 10 years imprisonment, with a consequent declaration that the conviction was one of a serious violent offence, requiring him to serve 80 per cent of his sentence. The Attorney-General appeals against that sentence, contending that it is inadequate.

The respondent was 28 years old at the time of the killing. He and his victim had been in a sexual relationship for some two years. He was charged with murder, but relied on a defence of provocation, which the jury evidently accepted as at least a reasonable possibility, in convicting of manslaughter. On 9 September 2005, he and his girlfriend had been at a casino and were returning home by car. The defence case was that the victim, who was…

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: [2007] QCA 426
Decision Date: 30 November 2007

CaseChat Overview and Summary

The case before the court involved an appeal against sentence by the Attorney-General of Queensland against the respondent, who had been convicted by a jury of manslaughter of his 16-year-old girlfriend. The respondent was sentenced to 10 years' imprisonment, with a declaration that the conviction was one of a serious violent offence. The Attorney-General argued that the sentence was manifestly inadequate. The primary issue before the court was whether the sentence imposed by the trial judge was manifestly inadequate, warranting appellate intervention. The court considered the principles of sentencing for manslaughter and the appropriate weight to be given to the mitigating factors present in the case.

In assessing the adequacy of the sentence, the court examined the nature and circumstances of the offence, the respondent's background, and the principles of sentencing for manslaughter. The court noted that while the offence involved a tragic loss of life, it was not a case of murder with aggravating factors. The respondent had shown remorse and had no prior criminal history. However, the court also recognised the seriousness of the offence, the vulnerability of the victim, and the need for general deterrence. After careful consideration, the court concluded that the sentence imposed by the trial judge was not manifestly inadequate and did not warrant appellate intervention.

The court dismissed the appeal, upholding the sentence imposed by the trial judge. The court emphasised that appellate courts should only intervene in cases of manifest inadequacy, and in this case, the sentence was within the range of appropriate penalties for the offence. The court's decision underscored the importance of deference to the trial judge's assessment of the facts and the principles of sentencing in manslaughter cases. The appeal was dismissed, and the original sentence stood.

Orders

Orders of the court

Appeal dismissed

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 Sebo; ex parte A-G (Qld) [2007] QCA 426
PARTIES:	R v SEBO, Damian Karl (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 170 of 2007 SC No 977 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	30 November 2007
DELIVERED AT:	Brisbane
HEARING DATE:	20 November 2007
JUDGES:	Keane and Holmes JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – where the respondent was convicted by a jury of the manslaughter of his 16 year old girlfriend – where the respondent was sentenced to 10 years with a declaration that the conviction was one of a serious violent offence – where the appellant contends that the sentence was manifestly inadequate Penalties and Sentences Act 1992 (Qld), s 9(3) R v Auberson [1996] QCA 321; CA Nos 248 & 249 of 1996, 3 September 1996, considered R v DeSalvo (2002) 127 A Crim R 229, considered R v George; Ex parte Attorney-General (Qld) [2004] QCA 450; CA No 316 of 2004, 26 November 2004, considered R v Matthews[2007] QCA 144; CA No 21 of 2007, 4 May 2007, considered R v Ogborne[2006] QCA 236; CA 232 of 2005, 23 June 2006, distinguished R v Sanderson[2003] QCA 338; CA No 40 of 2003, 8 August 2003, distinguished R v Schubring; Ex parte Attorney-General (Qld) [2005] 1 Qd R 515, distinguished R v Whiting; Ex parte Attorney-General [1995] 2 Qd R 199, considered
COUNSEL:	R G Martin SC for the appellant A W Moynihan SC, with S L Crofton, for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the respondent Legal Aid Queensland for the respondent