R v Sinden - [2005] QCA 414

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sinden [2005] QCA 414

PARTIES:

R
v
SINDEN, Derek Lulu
(applicant/appellant)

FILE NO/S:

CA No 198 of 2005
SC No 535 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

4 November 2005

JUDGES:

Jerrard and Keane JJA and Muir J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal against sentence granted
2. Appeal allowed to the extent of setting aside the sentence of 10 years imprisonment for manslaughter and substituting, in lieu thereof, a sentence of eight years imprisonment and a declaration that the applicant has been convicted of a serious violent offence

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - WHEN GRANTED - GENERALLY - where applicant had broken into a house and encountered an elderly woman - where the applicant had pushed the woman, held a pillow over her face and demanded money - where, subsequently, the woman was so distraught that she suffered a heart attack that resulted in her death - where the applicant had an extensive criminal history which included prior occasions on which the applicant had attacked elderly women in their homes - where applicant pleaded guilty on second day of trial to one count of manslaughter and one count of entering a dwelling and committing an indictable offence - where the applicant was sentenced to serve 10 years imprisonment for the manslaughter on 14 July 2005 and a serious violent offender declaration was made - where the applicant had previously been sentenced to seven years imprisonment with respect to certain other offences on 26 May 2000 - where the applicant had been held in custody since 26 April 1999 - whether the learned sentencing judge had correctly applied the totality principle discussed by the High Court in Mill v The Queen (1988) 166 CLR 59 - whether the sentence imposed was manifestly excessive

Mill v The Queen (1988) 166 CLR 59, cited

R v Bates; R v Baker [2002] QCA 174; CA No 295 and CA No 329 of 2001, 17 May 2002, considered

COUNSEL:

A J Rafter SC for the applicant/appellant
P F Rutledge for the respondent

SOLICITORS:

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

JERRARD JA: In this appeal I have had the advantage of reading the reasons for judgment of Keane JA and the orders proposed by His Honour, and I agree with those reasons and orders. The sentences imposed on 14 July 2005, for the offences of manslaughter and burglary, achieve a manifestly excessive result by reason of Mr Sinden being required in the circumstances to serve a minimum term of (as it transpires) 14 years, six months and 10 days…

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 Sinden

Details

AGLC: R v Sinden [2005] QCA 414
Case: [2005] QCA 414
Decision Date: 11 November 2005

CaseChat Overview and Summary

The case of R v Sinden involved an appeal by the convicted individual against his sentence for manslaughter. The applicant had broken into a house and, upon encountering an elderly woman, had pushed her, held a pillow over her face, and demanded money. The woman's distress led to a heart attack, resulting in her death. The applicant had a significant criminal history, including previous attacks on elderly women in their homes. He pleaded guilty to one count of manslaughter and one count of entering a dwelling and committing an indictable offence. The sentencing judge imposed a 10-year imprisonment term for the manslaughter, and a serious violent offender declaration was made. The applicant was also held in custody since 26 April 1999, having been sentenced to seven years for other offences on 26 May 2000. The central legal issue was whether the sentencing judge had correctly applied the totality principle as discussed by the High Court in Mill v The Queen, and whether the sentence imposed was manifestly excessive.

The court examined whether the sentencing judge had properly applied the totality principle, which entails considering the cumulative effect of the sentences for multiple offences. The court noted the applicant's extensive criminal history and previous attacks on elderly women, which influenced the severity of the sentence. The applicant argued that the sentence was manifestly excessive due to the cumulative effect of the sentences, and that the totality principle should have been more rigorously applied. The court acknowledged the need to balance the seriousness of the offence and the applicant's criminal history while ensuring that the sentence did not unfairly penalise the applicant for his previous convictions. The court found that the totality principle was not adequately considered, leading to an excessive sentence.

The appeal was allowed, and the sentence of 10 years imprisonment for manslaughter was set aside. In its place, the court imposed a sentence of eight years imprisonment for the manslaughter, along with a declaration that the applicant had been convicted of a serious violent offence. The court's decision highlighted the importance of properly applying the totality principle in sentencing, particularly in cases involving cumulative sentences for multiple offences. The outcome ensured a more balanced and just sentence, reflecting both the severity of the crime and the applicant's criminal history.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed to the extent of setting aside the sentence of 10 years imprisonment for manslaughter and substituting, in lieu thereof, a sentence of eight years imprisonment and a declaration that the applicant has been convicted of a serious violent offence

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Sinden [2005] QCA 414
PARTIES:	R v SINDEN, Derek Lulu (applicant/appellant)
FILE NO/S:	CA No 198 of 2005 SC No 535 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	11 November 2005
DELIVERED AT:	Brisbane
HEARING DATE:	4 November 2005
JUDGES:	Jerrard and Keane JJA and Muir J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal against sentence granted 2. Appeal allowed to the extent of setting aside the sentence of 10 years imprisonment for manslaughter and substituting, in lieu thereof, a sentence of eight years imprisonment and a declaration that the applicant has been convicted of a serious violent offence
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - WHEN GRANTED - GENERALLY - where applicant had broken into a house and encountered an elderly woman - where the applicant had pushed the woman, held a pillow over her face and demanded money - where, subsequently, the woman was so distraught that she suffered a heart attack that resulted in her death - where the applicant had an extensive criminal history which included prior occasions on which the applicant had attacked elderly women in their homes - where applicant pleaded guilty on second day of trial to one count of manslaughter and one count of entering a dwelling and committing an indictable offence - where the applicant was sentenced to serve 10 years imprisonment for the manslaughter on 14 July 2005 and a serious violent offender declaration was made - where the applicant had previously been sentenced to seven years imprisonment with respect to certain other offences on 26 May 2000 - where the applicant had been held in custody since 26 April 1999 - whether the learned sentencing judge had correctly applied the totality principle discussed by the High Court in Mill v The Queen (1988) 166 CLR 59 - whether the sentence imposed was manifestly excessive Mill v The Queen (1988) 166 CLR 59, cited R v Bates; R v Baker [2002] QCA 174; CA No 295 and CA No 329 of 2001, 17 May 2002, considered
COUNSEL:	A J Rafter SC for the applicant/appellant P F Rutledge for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent