R v AAV - [2014] QCA 343

SUPREME COURT OF QUEENSLAND

CITATION:

R v AAV [2014] QCA 343

PARTIES:

R
v
AAV
(applicant)

FILE NO/S:

CA No 40 of 2014
DC No 20 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Maroochydore

DELIVERED ON:

19 December 2014

DELIVERED AT:

Brisbane

HEARING DATE:

29 October 2014

JUDGES:

Fraser and Gotterson JJA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Refuse the amended application for leave to adduce evidence.

2. Refuse the application for leave to appeal against sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of rape and four counts of aggravated indecent dealing with a child under 16 years, all committed when he was 16 years of age – where the applicant was sentenced at the age of 17 years to an effective sentence of two years and six months detention, with parole release after serving 50 per cent – where the applicant argues the sentence is not in accord with the principle that a detention order should be for the shortest appropriate period – whether the sentence is manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE – where in sentencing the applicant the sentencing judge declined to make a transfer order pursuant to s 276B of the Youth Justice Act 1992 as in force at the time of sentence – where the Act was amended after the applicant was sentenced so that he had to be transferred to an adult prison facility – where the applicant sought to adduce evidence that rehabilitation programs were not available to him at the prison facility – where the applicant argued this required a reduction in the length of his sentence – whether the evidence established the availability of rehabilitation had been a significant factor in sentencing – whether, in any event, legislative activity after sentencing means a different sentence was warranted in law and should have been passed

Criminal Code 1899 (Qld), s 668E(3)
Youth Justice Act 1992 (Qld), s 267B, s 267D, s 276B, s 276C, s 364
Youth Justice and Other Legislation Amendment Act 2014 (Qld)

Elliott v The Queen (2007) 234 CLR 38; [2007] HCA 51, considered
R v AAQ [2012] QCA 335, cited
R v EI [2011] 2 Qd R 237; [2009] QCA 278, cited
R v Hughes [2004] 1 Qd R 541; [2003] QCA 460, considered
R v JAJ [2003] QCA 554, cited
R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited
R v PZ; ex parte Attorney-General (Qld) [2005] QCA 459, cited

COUNSEL:

D C Shepherd for the applicant
M R Byrne QC for the respondent

SOLICITORS:

Legal Aid Queensland for…

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 AAV

Details

AGLC: R v AAV [2014] QCA 343
Case: [2014] QCA 343
Decision Date: 19 December 2014

CaseChat Overview and Summary

In this matter, the applicant, who was 16 at the time of the offences, pleaded guilty to two counts of rape and four counts of aggravated indecent dealing with a child under 16 years. He was sentenced to an effective two years and six months detention, with parole release after serving 50 per cent. The applicant seeks to appeal the sentence on the grounds that it is manifestly excessive, and to adduce evidence about the unavailability of rehabilitation programs in the prison facility to which he was transferred.

The applicant argued that the sentence was not in accord with the principle that a detention order should be for the shortest appropriate period. He contended that the evidence about the unavailability of rehabilitation programs should have been a significant factor in sentencing, and that legislative changes occurring after the sentence required a reduction in the length of his sentence. The applicant also argued that the evidence showed that the sentence was manifestly excessive.

The Court rejected the applicant’s arguments. The Court held that the evidence about the unavailability of rehabilitation programs was not relevant to the question of whether the sentence was manifestly excessive. The Court held that the sentencing judge had properly considered the appropriate length of the sentence, and that there was no basis for interfering with the sentence on the ground that it was manifestly excessive. The Court also held that the legislative changes occurring after the sentence did not warrant a reduction in the length of the sentence. The Court held that the applicant’s application for leave to appeal against sentence should be refused.

Orders

Orders of the court

1. Refuse the amended application for leave to adduce evidence.

2. Refuse the application for leave to appeal against sentence.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v AAV [2014] QCA 343
PARTIES:	R v AAV (applicant)
FILE NO/S:	CA No 40 of 2014 DC No 20 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Maroochydore
DELIVERED ON:	19 December 2014
DELIVERED AT:	Brisbane
HEARING DATE:	29 October 2014
JUDGES:	Fraser and Gotterson JJA and Henry J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Refuse the amended application for leave to adduce evidence. 2. Refuse the application for leave to appeal against sentence.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of rape and four counts of aggravated indecent dealing with a child under 16 years, all committed when he was 16 years of age – where the applicant was sentenced at the age of 17 years to an effective sentence of two years and six months detention, with parole release after serving 50 per cent – where the applicant argues the sentence is not in accord with the principle that a detention order should be for the shortest appropriate period – whether the sentence is manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE – where in sentencing the applicant the sentencing judge declined to make a transfer order pursuant to s 276B of the Youth Justice Act 1992 as in force at the time of sentence – where the Act was amended after the applicant was sentenced so that he had to be transferred to an adult prison facility – where the applicant sought to adduce evidence that rehabilitation programs were not available to him at the prison facility – where the applicant argued this required a reduction in the length of his sentence – whether the evidence established the availability of rehabilitation had been a significant factor in sentencing – whether, in any event, legislative activity after sentencing means a different sentence was warranted in law and should have been passed Criminal Code 1899 (Qld), s 668E(3) Youth Justice Act 1992 (Qld), s 267B, s 267D, s 276B, s 276C, s 364 Youth Justice and Other Legislation Amendment Act 2014 (Qld) Elliott v The Queen (2007) 234 CLR 38; [2007] HCA 51, considered R v AAQ [2012] QCA 335, cited R v EI [2011] 2 Qd R 237; [2009] QCA 278, cited R v Hughes [2004] 1 Qd R 541; [2003] QCA 460, considered R v JAJ [2003] QCA 554, cited R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited R v PZ; ex parte Attorney-General (Qld) [2005] QCA 459, cited
COUNSEL:	D C Shepherd for the applicant M R Byrne QC for the respondent
SOLICITORS:	Legal Aid Queensland for…