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PARTIES: R v FRAME, Damien James (applicant)

FILE NO/S: CA No 288 of 2008 SC No 670 of 2008

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 13 February 2009

DELIVERED AT: Brisbane

HEARING DATE: 6 February 2009

JUDGES: Keane, Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application for leave to appeal against sentence refused

CATCHWORDS: CRIMINAL LAW — APPEAL AND NEW TRIAL — APPEAL AGAINST SENTENCE — GROUNDS FOR INTERFERENCE — PARITY BETWEEN CO-OFFENDERS — where sentence allegedly manifestly excessive insofar as the applicant was eligible for parole after serving 40 per cent of sentence whereas co-offender was eligible for parole after serving 33 and one third per cent of sentence — where sentence nonetheless accords with applicant's submissions before sentencing judge — whether sentence manifestly excessive / R v AAF [2008] QCA 235, cited R v Carter [2008] QCA 226, cited R v Walsh [2008] QCA 391, cited

COUNSEL: C W Heaton for the applicant M J Copley SC for the respondent

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

1. KEANE JA: On 8 July 2008 the applicant pleaded guilty to one count of manslaughter and one count of interfering with a corpse. On 10 October 2008 the applicant was sentenced to seven and a half years imprisonment for the offence of manslaughter and 18 months imprisonment in respect of the other offence to be served concurrently. The learned sentencing judge declared 775 days pre-sentence custody as time served, and fixed a parole eligibility date of 23 August 2009.

2. The applicant was 26 years old at the time of the offences. He has a history of minor criminal offending.

3. On the evening of 27 June 2006 the applicant and his co-offender, McPhee, killed the deceased in a brawl which followed a drinking bout. They dragged the body to the garage of the house where the applicant lived, and later removed the corpse from the garage and dumped the body elsewhere. Having regard to the issues raised on the application for leave to appeal, it is unnecessary to give a more elaborate statement of the circumstances of the offending or of the applicant's personal circumstances. It should be noted, however, that the applicant co-operated with the authorities, promptly admitting his role in the death of the deceased and offering to give evidence against his co-offender.

4. The applicant was sentenced on the basis that his level of culpability was less than that of his co-offender who was sentenced to eight and a half years imprisonment with parole eligibility after he had served 34 months of his sentence.

5. It should be noted immediately that the sentence which was imposed on the applicant was precisely in accordance with the submissions made on his behalf by able and experienced counsel. It is, therefore, unfortunate and surprising that it is now said on this application for leave to appeal that the sentence was manifestly excessive.

6. It has been said recently on a number of occasions in this Court that, because a party is ordinarily bound by the conduct of his case at first instance, the circumstance that the sentence imposed on an applicant for leave to appeal accords with the submissions made on behalf of the applicant to the learned sentencing judge is an obstacle to an argument that the sentence imposed was manifestly excessive.¹ In R v Walsh,² I said:

"The imposition of a just sentence is, of course, the responsibility of the sentencing judge; but where the sentence which is imposed accords with the position taken by the offender before the sentencing judge, the contention that leave to appeal should be granted because the sentence is manifestly excessive is difficult to sustain. If the sentence were indeed manifestly excessive then the applicant would not have agreed, by his Counsel, that it might properly be imposed. The applicant's submission is one to which effect could be given only in special circumstances sufficient to warrant the conclusion that the applicant should not be regarded as bound by the conduct of his case in the court below (R v Carter [2008] QCA 226 at [19]; R v AAF [2008] QCA 235 at [11]). No such circumstances are apparent here." (emphasis in original)

7. In this case, there is nothing apparent from the record or from the matters raised by the applicant which might support the suggestion that the applicant should not be bound by the conduct of his case before the learned sentencing judge. That being so, the application to this Court can be disposed of in short order.

8. There is no suggestion that the sentence imposed on the applicant was not within the permissible range. It is said that the sentence is manifestly excessive on the basis that the learned sentencing judge fell into error in providing for the applicant's eligibility for parole after he had served 40 per cent of his sentence whereas his co-offender would be eligible for parole after serving 33 and one third per cent of his sentence. It is said that the applicant is left with a justifiable sense of grievance by reason of this difference, bearing in mind that it was common ground that the co-offender's culpability for the offence was greater than that of the applicant and that the applicant's extensive co-operation with the administration of justice was also an important factor moderating the sentence to be imposed on him.

9. But, in truth, the applicant can have no justifiable sense of grievance. The first point to be made here is that it is evident that the applicant's co-offender was given the benefit of seven months pre-sentence custody which could not be declared to be pre-sentence custody. But for the circumstance that this period could not be declared as time served, the co-offender would have been sentenced to nine years imprisonment. If this undeclarable seven months period is added to the 34 months of custody before the co-offender is eligible for parole, then the co-offender's effective term of imprisonment is 41 months as compared with the 36 months to be served by the applicant. In Postiglione v The Queen,³ Dawson and Gaudron JJ recognised that different custodial circumstances may justify a difference in the time co-offenders may serve in prison. In the upshot, the circumstance that the applicant was given a shorter head sentence and will be eligible for parole five months earlier than his co-offender cannot be regarded as giving rise to a justifiable sense of grievance.

10. Secondly, there was no suggestion at the hearing below that the applicant's parole eligibility date should be fixed at some date other than that actively proposed by the applicant's counsel in order to achieve any particular relativity between the sentences imposed on the applicant and his co-offender. The applicant's counsel had the opportunity to make a submission in that regard, but did not. Any sense of grievance which the applicant may have because the sensible submissions made by experienced counsel on his behalf were accepted cannot be regarded as justifiable.

11. In these circumstances I am unable to see that there is any substantial basis on which the applicant can be regarded as having a justifiable sense of grievance which might warrant the conclusion that his sentence was manifestly excessive.

12. In my respectful opinion, the application for leave to appeal against sentence should be refused.

13. MUIR JA: I agree with the reasons of Keane JA and with the order he proposes.

14. FRASER JA: I would refuse the application for the reasons given by Keane JA.