R v Solomon

Case [2022] QCA 100

SUPREME COURT OF QUEENSLAND

CITATION:

R v Solomon [2022] QCA 100

PARTIES:

R
v
SOLOMON, Christabel Roxina
(applicant)

FILE NO/S:

CA No 277 of 2021
SC No 159 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court of Queensland at Townsville – Date of Sentence: 14 October 2021 (North J)

DELIVERED ON:

Date of Order: 10 May 2022
Date of Publication of Reasons: 31 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

6 May 2022

JUDGES:

McMurdo and Bond JJA and Mellifont J

ORDER:

Date of Order: 10 May 2022

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 was sentenced to 7.5 years imprisonment with immediate parole eligibility for one count of manslaughter, being a domestic violence offence – where the cause of death was a stab wound by a kitchen knife during the course of an argument – where the applicant appeals on the ground that the sentence was manifestly excessive and should be set aside in lieu for five years, suspended after time served, for an operational period of five years – whether it can be said that the sentence is unreasonable or plainly unjust

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the offence was a domestic violence offence – where the applicant had a history of domestic violence committed against her by the deceased – whether the sentencing judge erred in application of s 9(10A) of the Penalties and Sentences Act 1992 (Qld) such that the sentence miscarried

Criminal Law (Domestic Violence) Amendment Act2016 (Qld)
Penalties and Sentences Act 1992 (Qld), s 9(10A)

R v Blockey[2021] QCA 77, considered
R v Castel[2020] QCA 91, considered

COUNSEL:

A M Hoare and E D Boddice for the applicant
C W Wallis for the respondent

SOLICITORS:

Kilroy Callaghan Solicitors for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. McMURDO JA:  For the reasons given by Mellifont J, I joined in the order made for the refusal of this application on 10 May 2022.

  2. BOND JA:  For the reasons given by Mellifont J, I joined in the making of the Court’s order on 10 May 2022.

  3. MELLIFONT J:

    Introduction

  4. The application for leave to appeal against sentence was heard on 6 May 2022.

  5. On 10 May 2022, the application was refused, with reasons to follow.

  6. These are those reasons.

    Background

  7. On 14 October 2021, the applicant pleaded guilty to one count of manslaughter, being a domestic violence offence.

  8. The applicant was sentenced to 7.5 years imprisonment, with a presentence custody declaration of 737 days from 8 October 2019 and 13 October 2021.  The learned sentencing judge ordered immediate parole eligibility.  In so doing, his Honour had before him material from which it could be readily inferred that there would be a…

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Details
AGLC
R v Solomon [2022] QCA 100
Case
[2022] QCA 100
Decision Date

CaseChat Overview and Summary

The applicant in this case was sentenced to 7.5 years imprisonment, with immediate parole eligibility, for manslaughter, being a domestic violence offence. The applicant appealed against the sentence on the grounds that it was manifestly excessive and that the sentencing judge erred in the application of s 9(10A) of the Penalties and Sentences Act 1992 (Qld). The applicant submitted that the sentence should be set aside and replaced with a sentence of five years, suspended after time served, for an operational period of five years. The court was required to determine whether the sentence was manifestly excessive and whether there was an error in the application of s 9(10A) that infected the sentencing process.

The court found that the sentence was not manifestly excessive and that there was no error in the application of s 9(10A). The court noted that the sentencing judge had considered the history of domestic violence and the applicant's rehabilitation and background. The court also found that the sentencing judge had correctly applied s 9(10A) and that there was no error that infected the sentencing process. The court dismissed the appeal and upheld the original sentence.

The court found that the sentence imposed by the sentencing judge was not manifestly excessive or plainly unjust. The court noted that the sentencing judge had considered the history of domestic violence and the applicant's rehabilitation and background. The court also found that the sentencing judge had correctly applied s 9(10A) and that there was no error that infected the sentencing process. The court dismissed the appeal and upheld the original sentence. The final orders of the court were that the application for leave to appeal be refused.

Orders

Orders of the court

Date of Order: 10 May 2022

Application for leave to appeal refused.

Background

Background to the litigation

These are those reasons.Background On 14 October 2021, the applicant pleaded guilty to one count of manslaughter, being a domestic violence offence. The applicant was sentenced to 7.5 years imprisonment, with a presentence custody declaration of 737 days from 8 October 2019 and 13 October 2021. The learned sentencing judge ordered immediate parole eligibility. In so doing, his Honour had before him material from which it could be readily inferred that there would be a significant delay in the Parole Board considering any application for parole.[1][1]Appeal Record Book (AR) at 143.Offence The offence was committed on 8 October 2019. The offence was committed by the applicant in the course of an argument, against a history of significant domestic violence committed against her. The circumstances of the offence are set out in some detail below.[2] The cause of death was a stab wound by a large kitchen knife.[2][35].Grounds of appeal if leave were granted The sole ground of appeal in the Notice of Appeal is that the sentence was manifestly excessive. At the hearing of the application for leave to appeal, the applicant sought, and was granted, leave to add the following ground:(a)The learned sentencing judge erred in the application of section 9(10A) and this error infected the sentencing process such that the sentencing discretion miscarried. The applicant submits that the sentence imposed was manifestly excessive; that it should be set aside, and the applicant sentenced, in lieu, to five years, suspended after time served, for an operational period of five years.[3][3]In so submitting, the applicant contends for a lesser sentence than that imposed before the learned sentencing judge which was five years imprisonment, without a presentence custody declaration. The applicant is not bound by the submissions made on her behalf before the learned sentencing judge, and, if the Court were minded to accept the submissions, it would not be prohibited from doing so. At sentence, defence counsel put before the sentencing judge four single instance sentencing precedents for manslaughter. They were: In addition to four single instance decisions, two Court of Appeal decisions were placed before the learned sentencing judge and were relied upon by Counsel for the prosecution: R v Castel[4] and R v Blockey.[5][4][2020] QCA 91.[5][2021] QCA 77. In R v Castel, the applicant pleaded guilty to manslaughter, a domestic violence offence, in March 2019. The deceased was her husband. She was sentenced to nine years, with a pre-sentence custody declaration of 453 days (from 21 December 2017). No date for eligibility for parole was fixed. The applicant and her husband were married in April 2010 and had one child together who was four years old at the date of the offence. The applicant and her husband would argue on occasions about various topics and one of those topics often raised by the applicant was him coming home from work after 6 pm. He arrived home at approximately 8 pm on 20 December 2017 and an argument developed. The applicant was standing in the kitchen and her husband was seated at the kitchen bench approximately one to two metres away. The applicant picked up her husband’s laptop and threw it at him and he caught the laptop. She then picked up a 20.5 centimetre knife from the knife block. She scratched her inner left arm above the wrist twice with the blade of the knife and told her husband she wanted to kill herself. Her husband said something to her and, from a distance of approximately two to three metres away, she threw the knife in an overarm throw and it landed in her husband’s left chest. He said “what the fuck” and either pulled the knife out or the knife fell out of its own accord.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

His Honour also stated:“On behalf of the director, Mr Crane emphasised the seriousness of the offending, but he acknowledged quite fairly in this case that the circumstances of the evidence suggested that section 9(10A) did not apply here or at least was no relevant because of the history of domestic violence. He pointed to aspects of similarity between the offending here and the offending referred to in the Court of Appeal in both Castel and Blockey, noting the head sentences of nine years. But again, and quite fairly and I think appropriately in the particular circumstances here, he acknowledged or submitted that the sentencing discretion in the particular circumstances here might result in a sentence less than nine years. He did not go so far as to put a figure on it.On your behalf, counsel emphasised your rehabilitation, your background, your cooperation with the administration of justice. Two alternatives were offered to me, or at least the submission is made that a sentence could be imposed or discretion exercised as at seven years in the particular circumstances. In order to avoid any inconvenience or injustice occasioned by any delay in considering your parole application, it was submitted that I not declare the 737 days that you have served but instead impose a head sentence of five years imprisonment and wholly suspend the sentence. That is working on the premise of a notional seven year sentence imposition.I have already attempted to make the point that in my view, your offending was very serious, but occurred against the background of your disadvantaged life, the dysfunctional, dangerous relationships that you’ve been and relationship you were in with the deceased, and in circumstances where you have suffered from a range of conditions, psychiatric but also physical. Taking into account the matters relating to the seriousness of your offending, but giving full account, in my view, to the many circumstances or matters that can be said on your behalf, I have taken the view that a sentence should be imposed on the facts at seven and a half years. A conviction will be recorded. I find that you served pre-sentence custody from the 8th of October 2019 to the 13th of October 2021. I calculate that as 737 days, and I declare that as time served under the sentence imposed. As I’ve already observed, the time you have served is a few days longer than two days.Submissions were made about parole. Evidence in the form of a letter and dated in August relating to figures available to the parole board in July was placed before me as exhibit 15 in the context of submissions about the structure of the sentence and parole recommendation. I was it was pointed out to me that there are lengthy delays in the parole board in considering parole applications. That’s notorious, and it is apt to cause considerable injustice in particular cases from time to time if not more generally than that.One third of seven and a half years is two and a half years. In order to attempt to ameliorate the injustice of the situation with the parole board, and on the same hand acknowledging that it appears there will be some lengthy delay, I have determined to fix your parole eligibility date as at today, the 14th of October 2021. You of course will have to make an application to the board, and there may be some delay. That has influenced me in setting the parole eligibility date at significantly less than the one third mark.”Conclusion as to whether sentence manifestly excessive

Ratio Decidendi

Legal Principle Established

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