R v AR - [2003] QCA 538

SUPREME COURT OF QUEENSLAND

CITATION:

R v AR [2003] QCA 538

PARTIES:

R
v
AR
(applicant)

FILE NO/S:

CA No 283 of 2003
DC No 349 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED EX TEMPORE ON:

2 December 2003

DELIVERED AT:

Brisbane

HEARING DATE:

2 December 2003

JUDGES:

McPherson and Williams JJA and McMurdo J
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 – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PARITY – CO-OFFENDERS – DISCRIMINATION BETWEEN CO-OFFENDERS – where applicant convicted of kidnapping, common assault, assault occasioning bodily harm in company, sexual assault and sexual assault in company – where co-offender involved in kidnapping and sexual assault – where applicant sentenced to six and a half years imprisonment with serious violent offence declarations – where co-offender sentenced to five years imprisonment with recommendation for release after two years – where applicant instigator of offending conduct and was principal offender – whether applicant has legitimate sense of grievance because of the different sentences imposed on him and his co-offender – whether sentence imposed manifestly excessive

R v Eveleigh [2003] 1 Qd R 398, cited

COUNSEL:

K M McGinness for the applicant
D L Meredith for the respondent

SOLICITORS:

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

McPHERSON JA: The appeal against conviction having been withdrawn, the Court dismisses it.

WILLIAMS JA: The applicant pleaded guilty to one count of kidnapping, one count of common assault, two counts of assault occasioning bodily harm in company, one count of sexual assault and one count of sexual assault in company.

On the kidnapping count he was sentenced to six years' imprisonment with a serious violent offence declaration and on the sexual assault in company he was sentenced to six and a half years' imprisonment with a serious violent offence declaration. Lesser sentences were imposed with respect to the other counts.

Another person by the name of F was also involved in the commission of the offences. In the end, he was sentenced to five years imprisonment for the kidnapping offence and five years' imprisonment on the count of sexual assault in company. A recommendation for post prison release was made after serving two years' imprisonment.

The applicant now seeks leave to appeal against sentence and the primary submission was that he had a sense of grievance when the sentence imposed on him was considered with that imposed on F. In consequence, it is necessary to say something of the involvement of each in the commission of the offences and their background circumstances.

The applicant was born on 19 April 1968, making him 32 at the time of the offences and 35 at sentence. F was born on 18 March 1978, making him 22 at the time…

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 AR

Details

AGLC: R v AR [2003] QCA 538
Case: [2003] QCA 538
Decision Date: 2 December 2003

CaseChat Overview and Summary

The applicant, AR, was convicted of several serious offences, including kidnapping, assault, and sexual assault, and was sentenced to six and a half years in prison. His co-offender, who was also involved in the kidnapping and sexual assault, received a lighter sentence of five years with a recommendation for release after two years. AR sought leave to appeal against his sentence, arguing that it was manifestly excessive and discriminatory given his co-offender’s lighter sentence.

The primary legal issue before the court was whether the disparity in sentencing between AR and his co-offender constituted a legitimate grievance, warranting a review of AR's sentence. The court had to consider the principle of parity in sentencing and whether AR's role as the instigator and principal offender justified a more severe sentence. Furthermore, the court examined whether the sentence imposed on AR was manifestly excessive in light of the circumstances and the sentence given to his co-offender.

The court dismissed AR's application for leave to appeal. It found that the disparity in sentences did not give rise to a legitimate sense of grievance. The sentencing judge had appropriately taken into account the principle of parity and AR's role in the offending conduct. The court held that AR's sentence was not manifestly excessive, considering the gravity of the crimes committed and the need to deter similar offending in the future. The court also noted that the disparity in sentencing did not amount to discrimination, as each offender’s culpability and role in the crime were distinct.

No further orders were made by the court.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

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:	R v AR [2003] QCA 538
PARTIES:	R v AR (applicant)
FILE NO/S:	CA No 283 of 2003 DC No 349 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED EX TEMPORE ON:	2 December 2003
DELIVERED AT:	Brisbane
HEARING DATE:	2 December 2003
JUDGES:	McPherson and Williams JJA and McMurdo J 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 – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PARITY – CO-OFFENDERS – DISCRIMINATION BETWEEN CO-OFFENDERS – where applicant convicted of kidnapping, common assault, assault occasioning bodily harm in company, sexual assault and sexual assault in company – where co-offender involved in kidnapping and sexual assault – where applicant sentenced to six and a half years imprisonment with serious violent offence declarations – where co-offender sentenced to five years imprisonment with recommendation for release after two years – where applicant instigator of offending conduct and was principal offender – whether applicant has legitimate sense of grievance because of the different sentences imposed on him and his co-offender – whether sentence imposed manifestly excessive R v Eveleigh [2003] 1 Qd R 398, cited
COUNSEL:	K M McGinness for the applicant D L Meredith for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent