R v Arana - [2000] QCA 184

COURT OF APPEAL

de JERSEY CJ
McMURDO P
DUTNEY J

CA 441 of 1999

THE QUEEN

EDWIN ERIQUE ARANA Appellant

ROCKHAMPTON

..DATE 16/05/2000

JUDGMENT

THE CHIEF JUSTICE: Edwin and Douglas Arana were members of an organised graffiti gang operating in Townsville. Edwin pleaded guilty to 48 counts of wilful damage. He was 17 and 18 years old when he committed them. The restoration costs, we are told, amount to $44,000. He had no conviction for any prior offence although, around this time, he did commit a stealing offence for which he was subsequently convicted. He was given three years probation and 240 hours community service, the maximum, for the first 37 offences. The other 11 were committed at a time when the maximum penalty had increased from two years imprisonment to five years imprisonment.

Influenced by that, for those 11 other offences, the learned Judge sentenced the applicant, Edwin, to six months imprisonment suspended for three years. That was inconsistent with Hughes 2000 QCA 16 where the Court held that a suspended term may not be imposed concurrently with probation or community service. That sentence, unfortunately, will therefore have to be set aside.

Edwin sought leave, however, to appeal against the whole penalty imposed upon him which raises the issue what should be done consequent upon the necessary setting aside of the suspended imprisonment. Relevant to that is the learned Judge’s correct perception that the increase in the maximum penalty warranted sterner treatment in respect of the later 11 offences. The applicant’s brother, Douglas, pleaded guilty to more offences, 81, and was sentenced to 12 months imprisonment. Douglas was two years older than Edwin, had a prior criminal history including 39 graffiti offences and was not a candidate for community service. The cost of restoring his destruction was about $100,000.

One response to the problem with Edwin created by the impermissible imposition of the term of imprisonment wholly suspended would be an order that the probation and community service already ordered apply to all offences, that is including the 11 later offences.

Two points arise. The first is whether that course would involve paying merely lip service to the signal sent by the legislature in increasing the maximum penalty. And second, whether that would create unjustifiable disparity between the treatment of Edwin and Douglas leaving Douglas with a reasonable sense of grievance. Douglas, I should say, has abandoned his application for leave to appeal against sentence.

As to the question of disparity, I should say at once that the sentence imposed on Douglas was entirely justified. The prevalence of this disgraceful form of offending warrants strongly deterrent sentences. Especially having regard to the extent of Douglas’ offending and his previous similar offending, twelve months imprisonment was a perfectly proper penalty.

There are real distinctions between the positions of the two brothers. Most significant are the extent of offending; 48 offences as against 81, damage of the order of $44,000 as against $100,000, and the fact that Douglas had most…

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 Arana

Details

AGLC: R v Arana [2000] QCA 184
Case: [2000] QCA 184
Decision Date: 16/05/2000

CaseChat Overview and Summary

In the case of The Queen v. Edwin Erique Arana, the Queensland Court of Appeal was called upon to address a sentence imposed by the District Court at Townsville. Edwin Arana, a member of a graffiti gang, had pleaded guilty to 48 counts of wilful damage. The offences, committed between October 1996 and March 1998, involved extensive graffiti on various properties, including trains, public amenities, community organisations, and private homes, resulting in damages amounting to $43,850. The court was tasked with resolving the issue of whether the sentence imposed was lawful and appropriate, particularly given the increase in the maximum penalty for these offences from two to five years on 1 July 1997.

The legal issues at hand centred on the nature of the sentence imposed by the District Court. Edwin was given three years probation and 240 hours of community service for the first 37 offences, and for the remaining 11 offences, the court imposed a six-month imprisonment term suspended for three years. This was found to be inconsistent with the Court of Appeal's earlier ruling in Hughes 2000 QCA 16, which held that a suspended term may not be imposed concurrently with probation or community service. Therefore, the sentence for the later 11 offences had to be set aside.

The Court of Appeal also considered the broader implications of the sentence, including whether it adequately reflected the seriousness of the offences and the increase in the maximum penalty. The court recognised the need for a stern response to such vandalism to ensure general and special deterrence. However, the Court was constrained by the practicalities of the case, such as the risk of the appellant abandoning his appeal if the penalty was increased. Consequently, the Court concluded that the appropriate course was to set aside the suspended imprisonment and extend the probation and community service orders to all 48 offences.

The Court of Appeal, in its judgment, found that the original sentence imposed by the District Court was unlawful due to the concurrent imposition of a suspended sentence with probation and community service. The Court allowed the appeal to the extent of setting aside the suspended imprisonment for counts 38 to 48 and ordered that the probation and community service for counts 1 to 37 apply to counts 38 to 48 as well. This decision underscored the importance of adhering to the principles of sentencing and the need for legislative intervention to address the conflict between different sentencing options.

Orders