R v Simeon

[2000] QCA 470

SUPREME COURT OF QUEENSLAND

CITATION:

R v Simeon  [2000] QCA 470

PARTIES:

R
v
SIMEON, Wayne Edward
(applicant/appellant)

FILE NO/S:

CA No 167 of 2000
SC No  89 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Sentence application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 November 2000

DELIVERED AT:

Brisbane

HEARING DATE:

8 September 2000

JUDGES:

Pincus JA, Muir and Jones JJ
Judgment of the Court

ORDER:

Application for leave to appeal against sentence granted.  Appeal allowed to the extent of adding a recommendation that the applicant be considered for parole after having served 2 years and 9 months

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY – whether sentence of seven and a half years imprisonment for manslaughter too high

Bojovic [1999] QCA 206; CA No 4 of 1999, 8 June 1999, considered

Cavazza  CA No 404 of 1986, 3 April 1987, considered

Tientjes [1999] QCA 480; CA No 229 of 1999, 16 November 1999, considered

COUNSEL:

A J MacSporran for the applicant/appellant

T A C Winn for the respondent

SOLICITORS:

Dearden Lawyers for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

1. THE COURT:  This is an application for leave to appeal against sentence.  The applicant, then aged 27, attacked another man at a party because he thought that the victim struck the applicant's son.  The applicant pleaded guilty to manslaughter and was sentenced to 7 years and 6 months imprisonment.

1. The killing took place at a birthday party which had been in progress for about 8 hours, the party being one attended mainly by members of the Maori community;  the applicant is of Maori descent.  Hearing that a man named Clark had struck his son, the applicant accused Clark of that and, according to the applicant's statement to the police, Clark admitted having hit the boy.  But it is common ground that Clark did not in fact do so.  Perhaps the applicant misunderstood what Clark, who was very drunk, said in response to the applicant's accusation.

1. The applicant head-butted, punched and kicked Clark.  At the end of the attack he was seen leaning over Clark (who was then on the ground) punching him in the face;  then he was pulled off.  Clark's heartbeat and breathing ceased before the ambulance left and he was declared dead on arrival at hospital.  The cause of the death was said to be probably a blow below and behind the right ear, where there was extensive bruising to the muscle;  this caused a type of subarachnoid bleeding, which means bleeding in one of the membranes covering the brain.

1. Although one would tend to assume that, to cause death, the blow behind the ear must have been a very heavy one, the prosecutor explained to the judge that medical opinion was that the…