Lmo v The Queen - [2020] QChC 2

CHILDRENS COURT OF QUEENSLAND

CITATION:

LMO v The Queen [2020] QChC 2

PARTIES:

LMO

(Applicant)

v

THE QUEEN

(Respondent)

FILE NO/S:

531/19

DIVISION:

Criminal

PROCEEDING:

Sentence Review

ORIGINATING COURT:

Childrens Court at Hervey Bay

DELIVERED ON:

31 January 2020 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

31 January 2020

JUDGE:

Farr SC DCJ

ORDER:

Application dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL – Youth Justice Act 1992 – section 118 – re-hearing on the merits, pursuant to section 122(1) – where the applicant was sentenced for 23 offences – where the sentence included a three-month detention order to be served by way of a conditional release order – where the applicant had been remanded for 39-days at the time of sentence – where the applicant was subject to previous community-based orders at the time of the offences – where the review must take into account the sentencing principles in the Youth Justice Act 1992 (Qld) s 150 – whether the sentence imposed was excessive in the circumstances and disproportionate to the offences before the court – where some of the offences were of a reasonably serious nature – whether too much weight was placed on the applicants criminal history.

COUNSEL:

D Law for the applicant

T Little for the respondent

SOLICITORS:

Legal Aid (Qld) for the applicant

Director of Public Prosecutions (Qld) for the respondent

HIS HONOUR: All right. The Applicant was sentenced in the Hervey Bay Childrens Court on the 1st of November 2019 in relation to a total of 23 offences. For some of those offences, she was sentenced to a three-month detention order to be served by way of a conditional release order. Those offences were one of enter a dwelling and committing an indictable offence, two of entering a premises and committing an indictable offence, 11 charges of stealing, one of entering a premises with intent to commit an indictable offence, and one offence of serious assault of a police officer by biting, spitting, etcetera.
For the remainder of the charges, the Applicant was sentenced to a four-month good behaviour order, and that order is not the subject of this review; it need not be commented upon further. No convictions were recorded in relation to the offences, and probably of most relevance to this matter was the fact that the Applicant had been remanded for 39 days in relation to the offences at the time of sentence.
In relation to the offences the subject of this review, on one occasion the Applicant and a co-offender entered a dwelling and stole some keys to a restaurant; they subsequently entered that restaurant and stole $3000, an unknown quantity of liquor, and ate some small amount of food. The stealing charges relate to her stealing a phone charger from a service station, shoes from a sport store, lighters from a service station, a drink from a service station, a tip jar which contained only a small amount of money, some clothing from a clothing store, coins, other relatively…

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 Lmo v The Queen

Details

AGLC: Lmo v The Queen [2020] QChC 2
Case: [2020] QChC 2
Decision Date: 31 January 2020 (ex tempore)

CaseChat Overview and Summary

Lmo appealed against his sentence under the Youth Justice Act 1992, arguing that it was excessive and disproportionate to the nature of the offences committed. The applicant was sentenced for 23 offences and was subject to previous community-based orders at the time of the offences. The sentence imposed included a three-month detention order to be served by way of a conditional release order, with the applicant having already been remanded for 39 days at the time of sentence. The Court of Appeal was required to determine whether the sentence was excessive and whether too much weight was placed on the applicant’s criminal history. The Court was also required to consider whether the sentence was disproportionate to the offences before the court.

The Court of Appeal noted that the sentencing principles under the Youth Justice Act 1992 required the Court to consider the principles of proportionality, deterrence, rehabilitation, and community protection. The Court considered that the applicant had committed a significant number of offences, some of which were reasonably serious in nature. The Court also considered that the applicant had a history of offending and had failed to comply with previous community-based orders. The Court found that the sentence imposed was not excessive or disproportionate to the offences committed. The Court also found that the applicant’s criminal history was appropriately considered in the sentencing process.

The Court of Appeal dismissed the application, finding that the sentence imposed was appropriate in the circumstances. The Court noted that the applicant had committed a significant number of offences and had failed to comply with previous community-based orders. The Court found that the sentence imposed was proportionate to the seriousness of the offences and the need for community protection. The Court also found that the applicant’s criminal history was appropriately considered in the sentencing process. The Court held that the sentence was not excessive or disproportionate and did not place too much weight on the applicant’s criminal history.

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:	LMO v The Queen [2020] QChC 2
PARTIES:	LMO (Applicant) v THE QUEEN (Respondent)
FILE NO/S:	531/19
DIVISION:	Criminal
PROCEEDING:	Sentence Review
ORIGINATING COURT:	Childrens Court at Hervey Bay
DELIVERED ON:	31 January 2020 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	31 January 2020
JUDGE:	Farr SC DCJ
ORDER:	Application dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL – Youth Justice Act 1992 – section 118 – re-hearing on the merits, pursuant to section 122(1) – where the applicant was sentenced for 23 offences – where the sentence included a three-month detention order to be served by way of a conditional release order – where the applicant had been remanded for 39-days at the time of sentence – where the applicant was subject to previous community-based orders at the time of the offences – where the review must take into account the sentencing principles in the Youth Justice Act 1992 (Qld) s 150 – whether the sentence imposed was excessive in the circumstances and disproportionate to the offences before the court – where some of the offences were of a reasonably serious nature – whether too much weight was placed on the applicants criminal history.
COUNSEL:	D Law for the applicant T Little for the respondent
SOLICITORS:	Legal Aid (Qld) for the applicant Director of Public Prosecutions (Qld) for the respondent