R v A - [1995] QCA 208

IN THE COURT OF APPEAL [1995] QCA 208

SUPREME COURT OF QUEENSLAND

Brisbane	C.A. No. 50 of 1995
[R. v. A]

THE QUEEN

v.
A
Applicant
C.A. No. 80 of 1995

[R. v. Moenoa]

THE QUEEN
v.
MICHAEL SENETENARI MOENOA

Applicant
DAVIES J.A.
de JERSEY J.
BYRNE J.

Judgment delivered 06/06/1995
Judgment of the Court

IN RESPECT OF BOTH OF THE APPLICANTS, THE APPLICATIONS FOR LEAVE TO APPEAL ARE GRANTED, THE APPEALS ALLOWED AND THE SENTENCES IMPOSED BELOW ARE SET ASIDE; IN LIEU THEREOF, THE APPLICANTS ARE TO BE PLACED ON PROBATION FOR A PERIOD OF THREE YEARS.

C	ONVICTIONS SHOULD BE RECORDED IN EACH CASE.
CATCHWORDS:	CRIMINAL LAW - ARSON AND BREAKING AND ENTERING WITH INTENT - youthful first offenders; whether cultural background and life experience, remorse, youth and prospects of rehabilitation warrant non-custodial sentence in respect of first offender; whether insignificant involvement in offence, cultural background and youth of second offender warrants non-custodial sentence.
Counsel:	Mr. S. J. Hamlyn-Harris for the applicant A Mr. J. Farmer for the applicant Moenoa Mr. J. Fraser for the respondent
Solicitors:	Legal Aid Office for the applicant A Legal Aid Office for the applicant Moenoa Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 3 April 1995

REASONS FOR JUDGMENT - THE COURT
Judgment delivered the 6th day of June 1995

These are applications for leave to appeal against sentence by two youths convicted on pleas of guilty of arson and of an associated offence of breaking and entering with intent. Moenoa also pleaded guilty to a separate offence of breaking, entering and stealing. At the time of commission of the joint offences Moenoa was almost 19 and A was 16. Neither had any previous criminal history. Both are of Samoan descent.

Moenoa was sentenced to 12 months imprisonment in respect of each of the joint offences and to three months imprisonment, in respect of the separate offence of breaking, entering and stealing, all sentences to be served concurrently. A was sentenced to 18 months detention, with an order for release after serving one half of that term, in respect of each of the joint offences, those sentences also to be served concurrently.

The circumstances which gave rise to the commission of the joint offences were as follows. A was employed by a company which manufactured packaging. During the week before the commission of the offences he told a number of co-workers at the factory where he worked that he intended to burn that factory down. He persuaded several friends to join him in that enterprise. On the night of 10 January 1994 A and some other co-offenders broke and entered the factory, spread paint thinners about and lit the fire. Moenoa stayed outside and acted as lookout. Although A had earlier told him of his intention Moenoa did not take him seriously until he saw A and other co-offenders spreading the paint thinners around the floor of the factory. After the fire had been lit all then fled.

There were…

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 [1995] QCA 208
Case: [1995] QCA 208
Decision Date: 06/06/1995

CaseChat Overview and Summary

The appellants, R and A, were convicted of breaking and entering with intent and arson, respectively. Both were first-time offenders and were sentenced to imprisonment. They appealed against their sentences on the grounds of their cultural backgrounds, youth, and prospects for rehabilitation. The court was required to determine whether the appellants' cultural backgrounds, youth, and remorse were sufficient grounds to warrant a non-custodial sentence, and whether the lesser involvement of one of the appellants in the offence warranted a non-custodial sentence.

The court held that the appellants' cultural backgrounds and youth were relevant factors to be considered in determining an appropriate sentence. It was noted that both appellants had shown remorse and had prospects for rehabilitation. The court also held that the lesser involvement of one of the appellants in the offence warranted consideration in determining an appropriate sentence. Ultimately, the court held that the appellants' cultural backgrounds, youth, and prospects for rehabilitation were sufficient grounds to warrant a non-custodial sentence.

As a result, the court allowed the appeals and set aside the sentences imposed below. In lieu of the original sentences, the applicants were to be placed on probation for a period of three years, with their convictions to be recorded. The applications for leave to appeal were granted.

Orders

Orders of the court

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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