R v Selby - [2013] QCA 261

SUPREME COURT OF QUEENSLAND

CITATION: R v Selby [2013] QCA 261

PARTIES:

R v SELBY, Drew
(applicant)

FILE NO:

CA No 66 of 2013 SC No 276 of 2012 SC No 85 of 2013
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING
COURT: Supreme Court at Brisbane
DELIVERED ON: 13 September 2013
DELIVERED AT: Brisbane
HEARING DATE: 19 August 2013
JUDGES: Holmes and Muir JJA and North J
Separate reasons for judgment of each member of the Court,
each concurring as to the order made
ORDER: Application refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after trial of malicious act with intent – where the applicant and complainant were in dispute – where the complainant stated that he was coming to the applicant’s house – where the applicant took a rifle owned by a housemate, found some ammunition and loaded the rifle –

where the applicant shot the complainant in the back and further assaulted the complainant with the butt of the rifle and
kicked him while he was on the ground – where the applicant
was sentenced to eight years imprisonment with a serious
violent offence declaration – whether the sentence imposed
was manifestly excessive
Penalties and Sentences Act 1992 (Qld), s 161B(3)
R v Brannigan; R v Green [2009] QCA 271, cited
R v McDougall and Collas [2007] 2 Qd R 87; [2006]
QCA 365, cited
R v Nguyen [2006] QCA 542, cited
R v Perussich [2001] QCA 557, cited
COUNSEL: The applicant appeared on his own behalf
P J McCarthy for the respondent
SOLICITORS The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the
respondent

HOLMES JA: I agree with the reasons of North J and the order he proposes.
MUIR JA: I agree that the application for leave to appeal should be refused for the reasons given by North J.
NORTH J: After a trial in the Supreme Court the applicant was convicted before a
1
jury of malicious act with intent. The learned trial judge sentenced the applicant to
imprisonment for a period of eight years and a declaration was made that the
2
applicant was convicted of a serious violent offence.
The applicant seeks leave to appeal on the grounds that the sentence was manifestly excessive. The applicant, who represented himself, did not contend that the term of imprisonment imposed was excessive. His submission in both the written outline and at the hearing of the application was that the declaration of a serious violent offence meant that the sentence was excessive.
The circumstances of the offence were outlined in the sentencing remarks by the
3
learned trial judge. The applicant and the complainant, Potts, were in dispute. The genesis of the dispute was an alleged assault by the applicant upon a Ms Jones. The
complainant and some of his friends took objection to the applicant’s…

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 Selby

Details

AGLC: R v Selby [2013] QCA 261
Case: [2013] QCA 261
Decision Date: 13 September 2013

CaseChat Overview and Summary

The appeal in R v Selby was brought forth by the applicant, who sought to challenge the sentence imposed on them following their conviction for a malicious act with intent. The applicant and the complainant had been engaged in a dispute, culminating in the complainant announcing his intention to visit the applicant's residence. In anticipation of this visit, the applicant procured a rifle belonging to a housemate, loaded it with ammunition, and positioned themselves to confront the complainant. Upon the complainant's arrival, the applicant shot him in the back, subsequently striking and kicking him while he lay on the ground. The case was heard in the relevant appellate court, where the primary issue was whether the sentence imposed on the applicant was manifestly excessive.

The court had to determine if the sentence was so disproportionate to the offence that it required correction. This involved assessing the severity of the crime, which included the use of a firearm in a violent confrontation, and the resultant harm to the victim. The court reviewed the circumstances leading up to the shooting, the manner in which the crime was executed, and the potential for the applicant to reoffend. It was necessary to weigh the need for punishment and deterrence against the principles of proportionality and justice.

In delivering the judgment, the court concluded that the sentence of eight years imprisonment, coupled with a declaration of a serious violent offence, was not manifestly excessive. The court found that the sentence reflected the gravity of the crime, the use of a lethal weapon, and the significant harm inflicted on the complainant. The court determined that the sentence was proportionate to the nature and circumstances of the offence and did not warrant interference. Consequently, the application to appeal the sentence was dismissed.

Orders

Orders of the court

Application refused.

Background

Background to the litigation

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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

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CITATION:	R v Selby [2013] QCA 261
PARTIES:	R v SELBY, Drew
(applicant)
FILE NO:	CA No 66 of 2013 SC No 276 of 2012 SC No 85 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING
COURT:	Supreme Court at Brisbane
DELIVERED ON:	13 September 2013
DELIVERED AT:	Brisbane
HEARING DATE:	19 August 2013
JUDGES:	Holmes and Muir JJA and North J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after trial of malicious act with intent – where the applicant and complainant were in dispute – where the complainant stated that he was coming to the applicant’s house – where the applicant took a rifle owned by a housemate, found some ammunition and loaded the rifle –
where the applicant shot the complainant in the back and further assaulted the complainant with the butt of the rifle and
kicked him while he was on the ground – where the applicant
was sentenced to eight years imprisonment with a serious
violent offence declaration – whether the sentence imposed
was manifestly excessive
Penalties and Sentences Act 1992 (Qld), s 161B(3)
R v Brannigan; R v Green [2009] QCA 271, cited R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited R v Nguyen [2006] QCA 542, cited R v Perussich [2001] QCA 557, cited
COUNSEL:	The applicant appeared on his own behalf P J McCarthy for the respondent
SOLICITORS	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent