R v West - [2011] QCA 76

SUPREME COURT OF QUEENSLAND

CITATION:

R v West [2011] QCA 76

PARTIES:

R
v
WEST, Nicholas John
(applicant)

FILE NO/S:

CA No 183 of 2010
SC No 4 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

21 April 2011

DELIVERED AT:

Brisbane

HEARING DATE:

4 April 2011

JUDGES:

Fraser JA, Margaret Wilson AJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

That the application for leave to appeal against sentence be granted;1.

That the appeal be allowed; and2.

3.          That the sentence imposed on 23 July 2010 be varied by deleting the order for imprisonment for 15 years and in lieu thereof ordering that the applicant be imprisoned for 13 years.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant found guilty of manslaughter – where attack of at least seven severe blows to the top of the head as well as blows to other parts of the body – where applicant sentenced to imprisonment for 15 years – where declaration that applicant had been convicted of a serious violent offence – where pre-sentence custody of 595 days declared time already served – where applicant contends sentence manifestly excessive having regard to sentences imposed upon other offenders – where applicant contends for a sentence of around 12 years – whether sentence of 15 years manifestly excessive

R v Bates; R v Baker[2002] QCA 174, considered
R v Beacham[2006] QCA 268, considered
R v Corry[2006] QCA 203, considered
R v Meerdink[2010] QCA 273, considered
R v Mooka[2007] QCA 36, considered
R v Richmond-Sinclair[2009] QCA 98, considered
R v Schubring; ex parte Attorney-General (Qld) [2005] 1 Qd R 515; [2004] QCA 418, considered
R v Sebo; ex parte A-G (Qld)[2007] QCA 426, considered
R v Sheedy[1999] QCA 446, considered
R v Walker (1992) 13 Cr App R (S) 474, cited

COUNSEL:

J Hunter SC for the applicant
M J Copley SC for the respondent

SOLICITORS:

Purcell Taylor Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

[1] FRASER JA: I have had the advantage of reading the reasons for judgment of Margaret Wilson AJA. I agree with those reasons and with the orders proposed by her Honour.

[2] MARGARET WILSON AJA: The applicant, Nicholas John West, has applied for leave to appeal against sentence. He was charged with the murder of his uncle, Christopher Alexander John Hiles, on 6 December 2008. After a trial in the Supreme Court he was found not guilty of murder but guilty of manslaughter.

[3] The applicant was sentenced to imprisonment for 15 years, and a declaration that he had been convicted of a serious violent offence was made. Pre-sentence custody of 595 days was declared…

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 West

Details

AGLC: R v West [2011] QCA 76
Case: [2011] QCA 76
Decision Date: 21 April 2011

CaseChat Overview and Summary

The case of R v West involved the applicant who was found guilty of manslaughter. The applicant had inflicted at least seven severe blows to the top of the head of the victim, along with blows to other parts of the body. The applicant was sentenced to imprisonment for 15 years, with a declaration that the applicant had been convicted of a serious violent offence and that pre-sentence custody of 595 days was declared time already served. The applicant contended that the sentence was manifestly excessive, having regard to the sentences imposed upon other offenders, and sought a sentence of around 12 years.

The legal issue before the court was whether the sentence of 15 years was manifestly excessive. The applicant argued that the sentence was excessive in light of other sentences imposed for similar offences. The court considered the principles governing appeals against sentence, which include the need to ensure that the sentence is within the range of sentences that could be regarded as appropriate for the offence.

The court found that the sentence of 15 years was manifestly excessive, having regard to the sentences imposed upon other offenders. The court noted that the sentence was at the top end of the range of sentences that could be regarded as appropriate for the offence, and that the applicant's personal circumstances did not warrant a sentence at the top end of the range. The court also noted that the applicant had shown remorse and had not previously been convicted of a serious violent offence. The court allowed the appeal and varied the sentence to imprisonment for 13 years.

The court granted leave to appeal against sentence, allowed the appeal, and varied the sentence imposed on 23 July 2010 by deleting the order for imprisonment for 15 years and in lieu thereof ordering that the applicant be imprisoned for 13 years.

Orders

Orders of the court

That the application for leave to appeal against sentence be granted;1.

That the appeal be allowed; and2.

3. That the sentence imposed on 23 July 2010 be varied by deleting the order for imprisonment for 15 years and in lieu thereof ordering that the applicant be imprisoned for 13 years.

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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CITATION:	R v West [2011] QCA 76
PARTIES:	R v WEST, Nicholas John (applicant)
FILE NO/S:	CA No 183 of 2010 SC No 4 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	21 April 2011
DELIVERED AT:	Brisbane
HEARING DATE:	4 April 2011
JUDGES:	Fraser JA, Margaret Wilson AJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	That the application for leave to appeal against sentence be granted;1. That the appeal be allowed; and2. 3. That the sentence imposed on 23 July 2010 be varied by deleting the order for imprisonment for 15 years and in lieu thereof ordering that the applicant be imprisoned for 13 years.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant found guilty of manslaughter – where attack of at least seven severe blows to the top of the head as well as blows to other parts of the body – where applicant sentenced to imprisonment for 15 years – where declaration that applicant had been convicted of a serious violent offence – where pre-sentence custody of 595 days declared time already served – where applicant contends sentence manifestly excessive having regard to sentences imposed upon other offenders – where applicant contends for a sentence of around 12 years – whether sentence of 15 years manifestly excessive R v Bates; R v Baker[2002] QCA 174, considered R v Beacham[2006] QCA 268, considered R v Corry[2006] QCA 203, considered R v Meerdink[2010] QCA 273, considered R v Mooka[2007] QCA 36, considered R v Richmond-Sinclair[2009] QCA 98, considered R v Schubring; ex parte Attorney-General (Qld) [2005] 1 Qd R 515; [2004] QCA 418, considered R v Sebo; ex parte A-G (Qld)[2007] QCA 426, considered R v Sheedy[1999] QCA 446, considered R v Walker (1992) 13 Cr App R (S) 474, cited
COUNSEL:	J Hunter SC for the applicant M J Copley SC for the respondent
SOLICITORS:	Purcell Taylor Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent