R v Seijbel-Chocmingkwan - [2014] QCA 119

SUPREME COURT OF QUEENSLAND

CITATION:

R v Seijbel-Chocmingkwan [2014] QCA 119

PARTIES:

R
v
SEIJBEL-CHOCMINGKWAN, Wimon
(applicant)

FILE NO/S:

CA No 183 of 2013
SC No 342 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 May 2014

DELIVERED AT:

Brisbane

HEARING DATE:

5 May 2014

JUDGES:

Gotterson and Morrison JJA and Martin J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of attempted murder and one count of dangerous operation of a motor vehicle – where the applicant was sentenced to 10 years imprisonment for the first count and 12 months imprisonment to be served concurrently for the second count – where the first conviction was declared to be a serious violent offence – where the applicant was separated from her husband (“Seijbel”) of 12 years – where the complainant was in a relationship with the Seijbel – where the applicant was on parole for assault at the time of the offending – where the applicant ran her vehicle twice into the back of the complainant’s stationary vehicle causing Seijbel to suffer bruising – where the applicant got out of her vehicle, reached back into it to get a knife, then ran after and attacked the complainant by stabbing and strangling her – where the applicant kicked the complainant’s daughter in the face when she came to help – where a neighbour intervened ending the attack – where the applicant stabbed herself with a biro causing superficial injuries – where the complainant’s injuries were serious, remaining in hospital for three days – where the complainant continues to experience – where the applicant had mental health problems but was found by the Mental Health Court to be of sound mind at the time of the offences and fit to stand trial – where the applicant contends that the learned primary judge did not take into account her mental health problems – where the applicant submits that the learned primary judge did not make a finding as to premeditation – where the applicant contends that the offences were not premeditated – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 161B(1)

R v Evans[2004] QCA 458, considered
R v Folland[2004] QCA 209, cited
R v Kerwin[2005] QCA 259, considered
R v Lester[2004] QCA 34, considered
R v Mahoney, unreported, SC No 496 of 2013, Martin J, 10 March 2014, considered
R v Mallie; ex parte Attorney-General (Qld)[2009] QCA 109, considered
R v Rochester; ex parte Attorney-General (Qld)[2003] QCA 326, considered
R v Sauvao[2006] QCA 331, considered
R v Witchard & Ors; ex parte Attorney-General (Qld) [2005]…

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 Seijbel-Chocmingkwan

Details

AGLC: R v Seijbel-Chocmingkwan [2014] QCA 119
Case: [2014] QCA 119
Decision Date: 27 May 2014

CaseChat Overview and Summary

The case of R v Seijbel-Chocmingkwan involves an appeal against sentence by the applicant, who had pleaded guilty to one count of attempted murder and one count of dangerous operation of a motor vehicle. The applicant was sentenced to 10 years imprisonment for the attempted murder count and 12 months imprisonment, to be served concurrently for the dangerous operation count. The sentencing judge declared the attempted murder conviction to be a serious violent offence.

The legal issues for the court to decide were whether the sentence was manifestly excessive or inadequate, and if the sentencing judge failed to take into account the applicant's mental health issues. The applicant argued that the sentence was manifestly excessive and that the sentencing judge did not adequately consider her mental health problems, which included a history of mental illness and being on parole for assault at the time of the offence. The applicant also argued that the sentence should not have taken into account premeditation, as she claimed the offences were not premeditated.

The court considered the severity of the attempted murder, which involved the applicant deliberately running her vehicle into the complainant's vehicle and then attacking her with a knife and by strangling, in addition to kicking the complainant's daughter. The court found that the sentence was not manifestly excessive, noting the seriousness of the crime and the applicant's history of violence. The court further found that the sentencing judge had appropriately considered the applicant's mental health issues and that there was evidence of premeditation. Consequently, the court dismissed the application for leave to appeal.

No further orders were made by the court.

Orders

Orders of the court

Application for leave to appeal refused.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Seijbel-Chocmingkwan [2014] QCA 119
PARTIES:	R v SEIJBEL-CHOCMINGKWAN, Wimon (applicant)
FILE NO/S:	CA No 183 of 2013 SC No 342 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	27 May 2014
DELIVERED AT:	Brisbane
HEARING DATE:	5 May 2014
JUDGES:	Gotterson and Morrison JJA and Martin J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of attempted murder and one count of dangerous operation of a motor vehicle – where the applicant was sentenced to 10 years imprisonment for the first count and 12 months imprisonment to be served concurrently for the second count – where the first conviction was declared to be a serious violent offence – where the applicant was separated from her husband (“Seijbel”) of 12 years – where the complainant was in a relationship with the Seijbel – where the applicant was on parole for assault at the time of the offending – where the applicant ran her vehicle twice into the back of the complainant’s stationary vehicle causing Seijbel to suffer bruising – where the applicant got out of her vehicle, reached back into it to get a knife, then ran after and attacked the complainant by stabbing and strangling her – where the applicant kicked the complainant’s daughter in the face when she came to help – where a neighbour intervened ending the attack – where the applicant stabbed herself with a biro causing superficial injuries – where the complainant’s injuries were serious, remaining in hospital for three days – where the complainant continues to experience – where the applicant had mental health problems but was found by the Mental Health Court to be of sound mind at the time of the offences and fit to stand trial – where the applicant contends that the learned primary judge did not take into account her mental health problems – where the applicant submits that the learned primary judge did not make a finding as to premeditation – where the applicant contends that the offences were not premeditated – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 161B(1) R v Evans[2004] QCA 458, considered R v Folland[2004] QCA 209, cited R v Kerwin[2005] QCA 259, considered R v Lester[2004] QCA 34, considered R v Mahoney, unreported, SC No 496 of 2013, Martin J, 10 March 2014, considered R v Mallie; ex parte Attorney-General (Qld)[2009] QCA 109, considered R v Rochester; ex parte Attorney-General (Qld)[2003] QCA 326, considered R v Sauvao[2006] QCA 331, considered R v Witchard & Ors; ex parte Attorney-General (Qld) [2005]…