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R v Welham & Martin

R v Welham & Martin

Case [2012] QCA 103 20 April 2012

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Welham & Martin [2012] QCA 103

PARTIES:

R
v
WELHAM, Gavin Paul
(applicant)

R
v
MARTIN, Dianne Pearl
(applicant/appellant)

FILE NO/S:

CA No 123 of 2011
CA No 129 of 2011
SC No 72 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

20 April 2012

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2012

JUDGES:

Margaret McMurdo P, Chesterman JA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   In CA No 123 of 2011: The application by Gavin Paul Welham for leave to appeal against sentence be refused.

2.   In CA No 129 of 2011: Dianne Pearl Martin have leave to appeal against the sentence imposed on 17 May 2011.

3.   In CA No 129 of 2011: The appeal by Dianne Pearl Martin be allowed and it be ordered that the sentence imposed on her on 17 May 2011 be amended by deletion of the declaration that the offence was a serious violent offence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant’s offer to plead guilty to manslaughter was not accepted by the Prosecution – where applicant initially pleaded not guilty to improper interference with a corpse but later changed his plea to guilty – where the deceased had made threats against the applicant and his de facto partner Martin – where applicant enlisted a third party known for his violent tendencies to assault the deceased – where a surprise attack was made on the deceased – where third party inflicted fatal injuries on deceased with a baseball bat – where applicant only became aware that the third party had armed himself moments before the attack – where applicant was present for the assault but did not inflict violence on the deceased – where applicant did not render assistance to the deceased after the attack – where applicant left deceased to die and later disposed of the body – where applicant was sentenced to eleven years imprisonment for manslaughter and two years imprisonment for unlawful interference with a corpse – where applicant seeks leave to appeal against the sentence for manslaughter only – where sentencing judge accepted that applicant had not inflicted the fatal blows – where applicant provided belated assistance to the authorities – where applicant contends the sentencing judge imposed a sentence outside the range of comparable sentences – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant/appellant Martin pleaded not guilty to manslaughter – where applicant was found guilty of manslaughter and sentenced to eight years imprisonment and a discretionary serious…

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 Welham & Martin

Details

AGLC: R v Welham & Martin [2012] QCA 103
Case: [2012] QCA 103
Decision Date: 20 April 2012

CaseChat Overview and Summary

Gavin Paul Welham and Dianne Pearl Martin were convicted and sentenced for their involvement in the death of an individual who had threatened them. Welham appealed against his sentence for manslaughter, arguing it was excessive, while Martin appealed against the imposition of a serious violent offence declaration, contending it made her sentence manifestly excessive. Both appeals were heard in the Court of Appeal.

The court had to determine whether the sentences imposed on Welham and Martin were manifestly excessive or inadequate. For Welham, the court needed to consider the totality of his involvement, including his role in enlisting a third party for an assault that resulted in the death, his failure to intervene, and his subsequent disposal of the body. For Martin, the court had to examine whether the absence of clear reasons for the serious violent offence declaration rendered the entire sentence manifestly excessive.

Welham's appeal was dismissed because the court found that his sentence was within the appropriate range, considering his involvement in the events leading to the death. The court acknowledged Welham's belated cooperation with authorities but found his actions warranted a significant penalty. Martin's appeal was allowed because the court found that the lack of clear reasons for the serious violent offence declaration made the entire sentence manifestly excessive. The court determined that without the declaration, Martin's sentence would have been more proportionate to her role in the offence.

The final orders were that Welham's application for leave to appeal against sentence be refused, Martin be granted leave to appeal against her sentence, and the appeal be allowed with the deletion of the declaration that the offence was a serious violent offence.

Orders

Orders of the court

1. In CA No 123 of 2011: The application by Gavin Paul Welham for leave to appeal against sentence be refused.

2. In CA No 129 of 2011: Dianne Pearl Martin have leave to appeal against the sentence imposed on 17 May 2011.

3. In CA No 129 of 2011: The appeal by Dianne Pearl Martin be allowed and it be ordered that the sentence imposed on her on 17 May 2011 be amended by deletion of the declaration that the offence was a serious violent offence.

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

R v Welham & Martin [2012] QCA 103

Most Recent Citation

R v Wright [2013] QCA 22

Cases citing this decision · 6 of 6 shown

R v Bornstein
[2024] QSC 270 Para 6

…prisonment. In reaching this conclusion reliance is placed on the decisions of R v Welham & Martin ,[16] R v Wales [17] and R v Granz-Glenn .[18] [16][2012] QCA 103. [17][2019] QCA 64. [18][2023] QCA 157.…
R v Armitage, Armitage and Dean
[2020] QSC 41

…Taylor and Hicks [2011] QCA 207, distinguished R v WAW [2013] QCA 22, distinguished R v Wellham and Martin [2012] QCA 103, distinguished R v Wong [1995] 16 WAR 219, cited Thompson v R [2000] WASCA 186, cited…
R v Crawford, Patea and Patea
[2018] QSC 122 Para 13

…I interpolate that I have had regard, in the sentence I arrived at for Mr Crawford, to the decisions of the Court of Appeal in R v Welham and Martin [2012] QCA 103 as well as R v WAW [2013] QCA 22, and also to the sentences that were imposed by Justice Boddice in the case of Bliss and Stockman. In your case, Mr P…
R v Lincoln; R v Kister; R v Renwick
[2017] QCA 37 Para 18

…ipt of Proceedings, 31 May 2016, AB 25. [18][2008] QCA 226. [19][2004] QCA 116. [20][2007] 2 Qd R 87; [2006] QCA 365. [21][2011] QCA 207. [22][2012] QCA 103. [23]Transcript of Proceedings, 31 May 2016, AB 35 – 40.…
R v NQ
[2013] QCA 402 Para 1

…& Martin was 11 years imprisonment. In each case the Court of Appeal upheld the terms. [75] R v Jervis [1993] 1 Qd R 643. [76] R v Welham & Martin [2012] QCA 103. [77] R v Jervis (supra). [78]As in R v Welham & Martin (supra).…
R v WAW
[2013] QCA 22 Para 2

…The prosecution relied substantially on R v Welham & Martin [2012] QCA 103, submitting that the applicant’s conduct was comparable with Welham’s, who was sentenced to 11 years imprisonment. The Prosecutor submitted for a “global” range of 10 to 12 years (after allowance for the plea of guilty and cooperation othe…

View all 6 citing cases →

Cases cited in this decision · 9 of 9 shown

R v Hicks & Taylor
[2011] QCA 207 Para 1

…nning of the robbery, there was nothing like the pre-planning of violence which characterised Welham’s participation in the present case. [11][2011] QCA 207.…
R v West
[2011] QCA 76 Para 1

…sentences of 12 years imprisonment or more for manslaughter, were cases in which the offender had committed the act of killing. [4][2009] QCA 198. [5][2011] QCA 76.…
Lacey v Attorney-General (Qld)
[2011] HCA 10

…2 (Qld), s 161B(3) Lacey v Attorney-General of Queensland (2011) 242 CLR 573; [2011] HCA 10, applied R v Black [2009] QCA 198, distinguished R v Georgiou & Ors; R v Georgiou & Anor; ex parte A-G (Qld) (2002) 131 A Crim R 150; [2002] QCA 206, distinguished R v Hicks & Taylor [2011] QCA 207, distinguished R v McDo…
R v Black
[2009] QCA 198 Para 1

…est [5], involving sentences of 12 years imprisonment or more for manslaughter, were cases in which the offender had committed the act of killing. [4][2009] QCA 198. [5][2011] QCA 76.…
R v McDougall and Collas
[2006] QCA 365

…ylor [2011] QCA 207, distinguished R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited R v Schuurs [2000] QCA 278, distinguished R v West [2011] QCA 76, distinguished Skinner v The King (1913) 16 CLR 336; [1913] HCA 32, applied COUNSEL: M E Johnson for the applicant, Welham S J Hamlyn Harris for the…
R v Georgiou; R v Georgiou; ex parte
[2002] QCA 206 Para 1

…ourt also observed[10] that Georgiou’s sentence “could certainly have been fixed at a higher level without inviting intervention on appeal”. [8][2002] QCA 206. [9] Criminal Code 1899 (Qld), s 8. [10]Ibid at [101].…
R v Schuurs
[2000] QCA 278 Para 1

…ge in Welham's case was between nine and 11 years imprisonment. Although at the high end of that range, the sentence was not manifestly excessive. [1][2000] QCA 278.…
Skinner v The King
[1913] HCA 32

…d R v West [2011] QCA 76, distinguished Skinner v The King (1913) 16 CLR 336; [1913] HCA 32, applied COUNSEL: M E Johnson for the applicant, Welham S J Hamlyn Harris for the applicant/appellant, Martin G Cash for the respondent SOLICITORS: No appearance for applicant, Welham Legal Aid for the applicant/appellant…
Lacey v Attorney-General of Queensland
[2011] HCA 107

…nd Sentences Act 1992 (Qld), s 161B(3) Lacey v Attorney-General of Queensland (2011) 242 CLR 573; [2011] HCA 10, applied R v Black [2009] QCA 198, distinguished R v Georgiou & Ors; R v Georgiou & Anor; ex parte A-G (Qld) (2002) 131 A Crim R 150; [2002] QCA 206, distinguished R v Hicks & Taylor [2011] QCA 207, disting…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
161B(3) 2 mentions (from Para 1)

CITATION:	R v Welham & Martin [2012] QCA 103
PARTIES:	R v WELHAM, Gavin Paul (applicant) R v MARTIN, Dianne Pearl (applicant/appellant)
FILE NO/S:	CA No 123 of 2011 CA No 129 of 2011 SC No 72 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	20 April 2012
DELIVERED AT:	Brisbane
HEARING DATE:	5 March 2012
JUDGES:	Margaret McMurdo P, Chesterman JA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. In CA No 123 of 2011: The application by Gavin Paul Welham for leave to appeal against sentence be refused. 2. In CA No 129 of 2011: Dianne Pearl Martin have leave to appeal against the sentence imposed on 17 May 2011. 3. In CA No 129 of 2011: The appeal by Dianne Pearl Martin be allowed and it be ordered that the sentence imposed on her on 17 May 2011 be amended by deletion of the declaration that the offence was a serious violent offence.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant’s offer to plead guilty to manslaughter was not accepted by the Prosecution – where applicant initially pleaded not guilty to improper interference with a corpse but later changed his plea to guilty – where the deceased had made threats against the applicant and his de facto partner Martin – where applicant enlisted a third party known for his violent tendencies to assault the deceased – where a surprise attack was made on the deceased – where third party inflicted fatal injuries on deceased with a baseball bat – where applicant only became aware that the third party had armed himself moments before the attack – where applicant was present for the assault but did not inflict violence on the deceased – where applicant did not render assistance to the deceased after the attack – where applicant left deceased to die and later disposed of the body – where applicant was sentenced to eleven years imprisonment for manslaughter and two years imprisonment for unlawful interference with a corpse – where applicant seeks leave to appeal against the sentence for manslaughter only – where sentencing judge accepted that applicant had not inflicted the fatal blows – where applicant provided belated assistance to the authorities – where applicant contends the sentencing judge imposed a sentence outside the range of comparable sentences – whether the sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant/appellant Martin pleaded not guilty to manslaughter – where applicant was found guilty of manslaughter and sentenced to eight years imprisonment and a discretionary serious…