R v Watson; ex parte A-G (Qld) - [2009] QCA 279

SUPREME COURT OF QUEENSLAND

CITATION:

R v Watson; ex parte A-G (Qld) [2009] QCA 279

PARTIES:

R
v
WATSON, David Gabriel
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 153 of 2009
SC No 438 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

17 July 2009

JUDGES:

Chief Justice and Muir and Chesterman JJA
Separate reasons for judgment of each member of the Court, the Chief Justice and Chesterman JA concurring as to the orders made, Muir JA dissenting

ORDERS:

1.   Appeal allowed.

2.   The sentence of four and a half years imprisonment suspended after 12 months for an operational period of four years is set aside.

3.   The respondent is to be imprisoned for four and a half years, suspended after 18 months for an operational period of four and a half years.

4.   The declaration as to time already served (23 days, from 13 May 2009 to 5 June 2009) is to remain in place.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY THE CROWN – where the respondent was convicted on own plea of guilty of manslaughter on the basis of criminal negligence pursuant to s 290 of the Criminal Code – where the respondent was sentenced at first instance to four and a half years imprisonment suspended after 12 months – whether the sentence imposed was so inadequate as to warrant the court’s intervention

Criminal Code 1899 (Qld) s 290, s 669A

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
R v Chard ex parte A-G (Qld)[2004] QCA 372, distinguished
R v Cramp (Unreported, Supreme Court of Queensland, White J, 30 January 2008), distinguished
R v Johnson ex parte A-G (Qld)[2007] QCA 76, distinguished
R v KU & Ors; ex parte A-G (Qld) (2008) 181 A Crim R 58; [2008] QCA 20, considered
R v KU and Ors; ex parte A-G (Qld)[2008] QCA 154, considered
R v Lacey; ex parte A-G (Qld) [2009] QCA 274, approved
R v Pesnak & Anor (2000) 112 A Crim R 410; [2000] QCA 245, distinguished
R v Streatfield (1991) 53 A Crim R 320, considered
R v Tientjes ex parte A-G[1999] QCA 480, distinguished

COUNSEL:

W Sofronoff QC SG, with E Wilson, for the appellant
M J Burns SC, with P Morreau, for the respondent

SOLICITORS:

Crown Law for the appellant
Roberts Nehmer McKee for the respondent

JUSTICECHIEF : The Honourable the Attorney-General appeals, under s 669A(1) of the Criminal Code, against a sentence of four and a half years imprisonment, suspended after one year (for an operational period of four and a half years) imposed in the trial division of this court on 5 June 2009, upon the respondent’s plea of guilty to manslaughter. The respondent had been charged that on…

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: [2009] QCA 279
Decision Date: 18 September 2009

CaseChat Overview and Summary

The case of R v Watson; ex parte A-G (Qld) involved the respondent, Watson, who had been convicted of manslaughter by criminal negligence. The Attorney-General of Queensland appealed against the sentence imposed on Watson at first instance. Watson had pleaded guilty to manslaughter and was sentenced to four and a half years imprisonment, suspended after 12 months. The Attorney-General argued that the sentence was inadequate and sought a higher penalty. The appeal raised questions about the appropriate sentence for manslaughter by criminal negligence and the factors the court should consider in determining the adequacy of a sentence.

The court had to determine whether the sentence imposed by the trial judge was so inadequate that it warranted intervention. The appeal required consideration of the principles governing sentencing for manslaughter by criminal negligence and the extent to which the sentence should reflect the seriousness of the offence and the need for general deterrence. The court also needed to evaluate the impact of the sentencing principles and the relevant statutory provisions, particularly s 290 of the Criminal Code, on the adequacy of the sentence.

The court found that the sentence of four and a half years imprisonment, suspended after 12 months, was indeed inadequate. The court acknowledged the seriousness of manslaughter by criminal negligence and the importance of general deterrence. It considered the need for a sentence that reflected the gravity of the offence and provided a sufficient punishment. The court also noted the operational period of four years, which it deemed insufficient to achieve the objectives of punishment and deterrence. Consequently, the appeal was allowed, and the sentence was set aside. The court ordered a new sentence of four and a half years imprisonment, suspended after 18 months for an operational period of four and a half years, while maintaining the declaration as to time already served.

The final orders of the court were that the original sentence of four and a half years imprisonment, suspended after 12 months, be set aside. Watson was to be imprisoned for four and a half years, suspended after 18 months for an operational period of four and a half years. The declaration regarding the time already served, from 13 May 2009 to 5 June 2009, was to remain in place.

Orders

Orders of the court

1. Appeal allowed.

2. The sentence of four and a half years imprisonment suspended after 12 months for an operational period of four years is set aside.

3. The respondent is to be imprisoned for four and a half years, suspended after 18 months for an operational period of four and a half years.

4. The declaration as to time already served (23 days, from 13 May 2009 to 5 June 2009) is to remain in place.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Watson; ex parte A-G (Qld) [2009] QCA 279
PARTIES:	R v WATSON, David Gabriel (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 153 of 2009 SC No 438 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 September 2009
DELIVERED AT:	Brisbane
HEARING DATE:	17 July 2009
JUDGES:	Chief Justice and Muir and Chesterman JJA Separate reasons for judgment of each member of the Court, the Chief Justice and Chesterman JA concurring as to the orders made, Muir JA dissenting
ORDERS:	1. Appeal allowed. 2. The sentence of four and a half years imprisonment suspended after 12 months for an operational period of four years is set aside. 3. The respondent is to be imprisoned for four and a half years, suspended after 18 months for an operational period of four and a half years. 4. The declaration as to time already served (23 days, from 13 May 2009 to 5 June 2009) is to remain in place.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY THE CROWN – where the respondent was convicted on own plea of guilty of manslaughter on the basis of criminal negligence pursuant to s 290 of the Criminal Code – where the respondent was sentenced at first instance to four and a half years imprisonment suspended after 12 months – whether the sentence imposed was so inadequate as to warrant the court’s intervention Criminal Code 1899 (Qld) s 290, s 669A House v The King (1936) 55 CLR 499; [1936] HCA 40, cited R v Chard ex parte A-G (Qld)[2004] QCA 372, distinguished R v Cramp (Unreported, Supreme Court of Queensland, White J, 30 January 2008), distinguished R v Johnson ex parte A-G (Qld)[2007] QCA 76, distinguished R v KU & Ors; ex parte A-G (Qld) (2008) 181 A Crim R 58; [2008] QCA 20, considered R v KU and Ors; ex parte A-G (Qld)[2008] QCA 154, considered R v Lacey; ex parte A-G (Qld) [2009] QCA 274, approved R v Pesnak & Anor (2000) 112 A Crim R 410; [2000] QCA 245, distinguished R v Streatfield (1991) 53 A Crim R 320, considered R v Tientjes ex parte A-G[1999] QCA 480, distinguished
COUNSEL:	W Sofronoff QC SG, with E Wilson, for the appellant M J Burns SC, with P Morreau, for the respondent
SOLICITORS:	Crown Law for the appellant Roberts Nehmer McKee for the respondent