R v A - [2001] QCA 542

[2001] QCA 542

COURT OF APPEAL

de JERSEY CJ
McMURDO P
WILLIAMS JA

CA No 275 of 2001

THE QUEEN

A Respondent

and

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE

..DATE 28/11/2001

JUDGMENT

THE CHIEF JUSTICE: The respondent pleaded guilty in the District Court to having raped his grandmother at X on
12 April 2001. He was sentenced on 14 September 2001 at Cairns. At the time of committing the rape the respondent was 16 years and eight months old, having been born on
7 August 1984. By the time of sentencing he had reached
17 years.

The learned Judge sentenced him to 12 months' detention, noting the serious nature of the offence including the use of violence, but forthwith suspended the detention order under section 176 of the Juvenile Justice Act and made an immediate release order requiring the respondent to participate in a rehabilitative program facilitated by Cairns Indigenous Youth Outreach Program staff and departmental officers at Cairns for a period of three months. The respondent had served 80 days pre-sentence custody. The Judge did not record a conviction.

As at the time of sentencing the prospect of the respondent's completing the program were not particularly sanguine. That is because, having been charged in relation to the rape on 19 April 2001 and placed on a conditional bail program, the respondent breached his bail on 8 May 2001 by re-offending. Bail having been renewed, he again breached the conditions of his bail on 5 July 2001, which led to his being remanded in custody and serving those 80 days pre-sentence custody.

Having been given the opportunity of the three month immediate release order program when he was sentenced on 14 September 2001, the respondent proceeded to breach its conditions by smoking marijuana at the residential facility sometime prior to 12 October 2001. That resulted in his exclusion from the program, which was a residential program, on 14 October 2001.

He was formally warned and required to attend a meeting with a counselling officer on 25 October and was then placed into the care of his aunt. He persistently failed after that to attend to the further requirements of his program. Breach action culminated in proceedings before the same Judge as sentenced him on 14 September 2001.

Dealing with those proceedings last week on 20 November 2001, the learned Judge recorded that she was satisfied that the breach had occurred and that the respondent should not be given any further non-custodial opportunity. The term of the detention which on 14 September 2001 she fully suspended was 12 months.

She accepted that the respondent had substantially completed the first month of the immediate order program. She subtracted that one month from the 12 months, and then in addition took account of the 87 days already served in detention. Her Honour proceeded to reduce the 12 months by an aggregate of four months, consequently ordering the respondent to serve eight months' detention.

As matters stand, therefore, the sentence to which the respondent…

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 A

Details

AGLC: R v A [2001] QCA 542
Case: [2001] QCA 542
Decision Date: 28/11/2001

CaseChat Overview and Summary

The case of R v A before the Queensland Court of Appeal involved the respondent, who had pleaded guilty to raping his grandmother. The respondent was sentenced to 12 months' detention, which was suspended, and an immediate release order requiring participation in a rehabilitative program. However, the respondent breached the conditions of this program, leading to proceedings for breach of the original sentence. The Attorney-General of Queensland appealed the original sentence, arguing it was manifestly inadequate given the gravity of the offence and the need for general deterrence. The Court of Appeal agreed with the Attorney-General, finding the original sentence to be intolerably lenient. The Court found that the respondent should have been subjected to a four-year term of detention, with special circumstances warranting a reduction to 50 percent to be served, resulting in two years of actual detention. The Court set aside the penalties imposed and ordered the respondent to serve four years' detention, to be released after serving 50 percent of that term, with a conviction to be recorded.

The primary legal issues before the Court of Appeal involved the adequacy of the original sentence imposed on the respondent and the appropriate term of detention considering the gravity of the offence. The Court had to determine whether the original sentence sufficiently reflected the seriousness of the crime, particularly the violent nature of the rape and the breach of familial trust. The Court also considered the principles of punishment, deterrence, and protection of the community, and whether these were appropriately balanced against the mitigating factors in the case. The Court further had to decide on the appropriate term of detention considering the respondent's age, the plea of guilty, and the breach of the rehabilitative program. The Court concluded that a substantial term of detention was necessary, and the original sentence was manifestly inadequate.

Orders