R v Tientjes; ex parte A-G (Qld) - [1999] QCA 480

SUPREME COURT OF QUEENSLAND

CITATION: R v Tientjes; ex parte A-G [1999] QCA 480

PARTIES: R
v
TIENTJES, Mark Anthony
(Respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(Appellant)

FILE NO/S: CA No 229 of 1999
SC No 181 of 1998

DIVISION: Court of Appeal

PROCEEDING: Appeal against sentence by Attorney-General

ORIGINATING COURT:
Supreme Court at Cairns

DELIVERED ON: 16 November 1999

DELIVERED AT: Brisbane

HEARING DATE: 13 October 1999

JUDGES: McMurdo P, Davies and McPherson JJA

ORDER: Appeal allowed. Set aside sentence below and in lieu impose a sentence of seven years imprisonment.

CATCHWORDS:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – Attorney-General's appeal against sentence – respondent convicted of manslaughter – where attack on deceased in response to a punch – extent of response – intoxicated at time of offence – comparative sentences.

R v Bojovic CA No 4 of 1999, 8 June 1999; [1999] QCA 206, applied

COUNSEL: Mr P Rutledge for appellant
Mr B Devereaux for respondent

SOLICITORS:
Director of Public Prosecutions (Queensland) for appellant
Legal Aid Queensland for respondent

THE COURT: Mark Anthony Tientjes was convicted of manslaughter after a trial in the Supreme Court at Cairns on 8 June last. The offence occurred on 29 October 1997. On the same day he was sentenced to four and a half years imprisonment. The Attorney appeals against that sentence.

The respondent was 36 years of age at the time of commission of this offence, having been born on 21 February 1961. He had only one relevant prior conviction, for assault occasioning bodily harm, for which he had been fined on 1 March 1992.

The deceased was a 27 year old man who was epileptic. Prior to the events leading up to his death he and the respondent were friendly. They had apparently known one another for some time. On the night before his death he and the respondent had been drinking at various places in Cairns. They left a bar together about 5.45 am on 29 October. At about 6.00 am the deceased was found lying unconscious on the footpath outside the bar. He had obvious facial injuries.

On post mortem examination the deceased's injuries were found to be extensive. He had an abrasion or graze six by seven centimetres on the left knee, a two centimetre bruise across the right upper arm, an area of bruising seven by six centimetres at the front of the left upper arm, two parallel abrasions six or seven centimetres long below the left nipple, multiple bruises over the front right chest, a purple bruise a few centimetres across in the middle of his right chest, a bruise two centimetres across over the right eyebrow, a number of what appeared to be bruises and abrasions covering a total area of seven by two centimetres on both cheeks and some abrasions and bruising on the left side of the forehead. Some of these abrasions to…

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.

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Details

Case: [1999] QCA 480
Decision Date: 16 November 1999

CaseChat Overview and Summary

The case of R v Tientjes; ex parte A-G (Qld) involved the Attorney-General of Queensland appealing against a sentence imposed on the respondent, who had been convicted of manslaughter. The respondent had attacked the deceased in response to being punched, and the extent of the response was a key issue. The respondent had been intoxicated at the time of the offence, which was also a factor in the sentencing considerations. The court had to determine whether the sentence imposed was appropriate in light of these circumstances.

The primary legal issue before the court was whether the sentence of imprisonment imposed on the respondent for manslaughter was too lenient. The court needed to consider the circumstances of the offence, including the extent of the respondent's actions in response to the initial attack and the fact that he was intoxicated at the time. The Attorney-General argued that the sentence was too lenient and that the court should impose a harsher penalty. The court had to balance these factors and decide whether the sentence should be altered.

In delivering its judgment, the court recognised that the respondent's actions were a response to an attack and that he was intoxicated at the time. However, the court also considered the severity of the response and the need for the sentence to reflect the seriousness of the offence. The court found that the sentence of imprisonment was indeed too lenient and did not adequately reflect the circumstances of the offence. As a result, the court allowed the appeal, set aside the original sentence, and imposed a sentence of seven years imprisonment in its place.

The final orders of the court were that the appeal was allowed, the sentence below was set aside, and in lieu a sentence of seven years imprisonment was imposed on the respondent. This decision reflected the court's view that the original sentence did not adequately reflect the circumstances of the offence, particularly the extent of the respondent's actions and the need for a sentence that was commensurate with the seriousness of the crime.

Orders

Orders of the court

Appeal allowed. Set aside sentence below and in lieu impose a sentence of seven years imprisonment.

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 Tientjes; ex parte A-G [1999] QCA 480
PARTIES:	R v TIENTJES, Mark Anthony (Respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (Appellant)
FILE NO/S:	CA No 229 of 1999 SC No 181 of 1998
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against sentence by Attorney-General
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	16 November 1999
DELIVERED AT:	Brisbane
HEARING DATE:	13 October 1999
JUDGES:	McMurdo P, Davies and McPherson JJA
ORDER:	Appeal allowed. Set aside sentence below and in lieu impose a sentence of seven years imprisonment.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – Attorney-General's appeal against sentence – respondent convicted of manslaughter – where attack on deceased in response to a punch – extent of response – intoxicated at time of offence – comparative sentences. R v Bojovic CA No 4 of 1999, 8 June 1999; [1999] QCA 206, applied
COUNSEL:	Mr P Rutledge for appellant Mr B Devereaux for respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for appellant Legal Aid Queensland for respondent