R v Zarnke - [2019] QCA 141

SUPREME COURT OF QUEENSLAND

CITATION:

R v Zarnke [2019] QCA 141

PARTIES:

R
v
ZARNKE, John Bernard
(applicant)

FILE NO/S:

CA No 241 of 2018
SC No 1152 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 20 August 2018 (North J)

DELIVERED ON:

26 July 2019

DELIVERED AT:

Brisbane

HEARING DATE:

10 May 2019

JUDGES:

Fraser and Morrison and McMurdo JJA

ORDER:

Application dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to 13 years imprisonment for manslaughter – where the applicant had a personality with a propensity towards violence, suffered from a severe and at times treatment-resistant schizophrenic illness, and had a long history of drug use – whether the sentencing judge erred by imposing a sentence beyond that which was appropriate, for the purpose of protecting the community – whether the sentence imposed was manifestly excessive in all of the circumstances

Penalties and Sentences Act 1992 (Qld), s 9

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, cited
R v Beacham (2006) 163 A Crim R 348; [2006] QCA 268, applied
R v Goodger[2009] QCA 377, cited
R v Miguel [1994] QCA 512, considered
R v Perini; Ex parte Attorney-General (Qld) (No 2) (2011) 222 A Crim R 333; [2011] QCA 384, distinguished
R v Potter; Ex parte Attorney-General (Qld) (2008) 183 A Crim R 497; [2008] QCA 91, distinguished
R v Pringle; Ex parte Attorney-General (Qld) [2012] QCA 223, distinguished
R v Yarwood (2011) 220 A Crim R 497; [2011] QCA 367, cited
Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7, followed
Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, followed

COUNSEL:

J R Jones with N Edridge for the applicant (pro bono)
D I Balic for the respondent

SOLICITORS:

Fisher Dore Lawyers for the applicant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: The applicant seeks leave to appeal against his sentence of 13 years imprisonment for manslaughter. The applicant was also sentenced to concurrent terms of two years imprisonment upon each of two counts of unlawfully using a motor vehicle and he was dealt with for various summary charges. The grounds of the proposed appeal are that the sentencing judge erred by imposing a sentence beyond that which is appropriate, for the purpose of protecting the community, and that the sentence is manifestly excessive.
The applicant was 34 years old when he committed the manslaughter offence. He had a criminal history of offences committed between 1997 and 1999 and in 2006 and 2007. Most of the convictions were for minor street and drug offences and breaches of bail. In addition to one conviction in 1997 and one in 1998 were for assaulting police, in 1998 the applicant was convicted of…

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 Zarnke

Details

AGLC: R v Zarnke [2019] QCA 141
Case: [2019] QCA 141
Decision Date: 26 July 2019

CaseChat Overview and Summary

In the case of R v Zarnke, the appellant, who had been convicted of manslaughter, sought an appeal against the sentence imposed by the sentencing judge. The appellant had been sentenced to 13 years imprisonment, a sentence that he argued was manifestly excessive. The appellant contended that the sentencing judge erred by imposing a sentence that was beyond what was appropriate for his circumstances, instead of focusing on the appropriate punishment for the offence committed. The appellant's arguments were based on his personality, which had a propensity towards violence, his severe and treatment-resistant schizophrenic illness, and his long history of drug use.

The legal issue before the court was whether the sentence imposed by the sentencing judge was manifestly excessive in all of the circumstances of the case. The court had to consider whether the sentence was appropriate in light of the appellant's background and whether it was imposed for the purpose of protecting the community. The court also had to consider whether the sentence was disproportionate to the offence committed, and whether there were any other factors that should have been taken into account when imposing the sentence.

The court held that the sentence imposed by the sentencing judge was not manifestly excessive. The court found that the sentencing judge had taken into account all of the relevant factors when imposing the sentence, including the appellant's background and the need to protect the community. The court also found that the sentence was proportionate to the offence committed, and that there were no other factors that should have been taken into account. The court dismissed the appeal and held that the sentence imposed was appropriate.

The court's decision in this case is a reminder that sentencing judges have broad discretion when imposing sentences, and that their decisions will not be lightly interfered with by appellate courts. The court's decision also highlights the importance of taking into account all relevant factors when imposing a sentence, including the offender's background and the need to protect the community.

Orders

Orders of the court

Application dismissed.

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 Zarnke [2019] QCA 141
PARTIES:	R v ZARNKE, John Bernard (applicant)
FILE NO/S:	CA No 241 of 2018 SC No 1152 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 20 August 2018 (North J)
DELIVERED ON:	26 July 2019
DELIVERED AT:	Brisbane
HEARING DATE:	10 May 2019
JUDGES:	Fraser and Morrison and McMurdo JJA
ORDER:	Application dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to 13 years imprisonment for manslaughter – where the applicant had a personality with a propensity towards violence, suffered from a severe and at times treatment-resistant schizophrenic illness, and had a long history of drug use – whether the sentencing judge erred by imposing a sentence beyond that which was appropriate, for the purpose of protecting the community – whether the sentence imposed was manifestly excessive in all of the circumstances Penalties and Sentences Act 1992 (Qld), s 9 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, cited R v Beacham (2006) 163 A Crim R 348; [2006] QCA 268, applied R v Goodger[2009] QCA 377, cited R v Miguel [1994] QCA 512, considered R v Perini; Ex parte Attorney-General (Qld) (No 2) (2011) 222 A Crim R 333; [2011] QCA 384, distinguished R v Potter; Ex parte Attorney-General (Qld) (2008) 183 A Crim R 497; [2008] QCA 91, distinguished R v Pringle; Ex parte Attorney-General (Qld) [2012] QCA 223, distinguished R v Yarwood (2011) 220 A Crim R 497; [2011] QCA 367, cited Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7, followed Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, followed
COUNSEL:	J R Jones with N Edridge for the applicant (pro bono) D I Balic for the respondent
SOLICITORS:	Fisher Dore Lawyers for the applicant (pro bono) Director of Public Prosecutions (Queensland) for the respondent