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R v AS; ex parte

R v AS; ex parte

Case [2004] QCA 259 30 July 2004

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SUPREME COURT OF QUEENSLAND

CITATION:

R v AS; ex parte A-G (Qld) [2004] QCA 259

PARTIES:

R
v
AS
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 183 of 2004
SC No 175 of 2004
SC No 179 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 July 2004

DELIVERED AT:

Brisbane

HEARING DATE:

28 July 2004

JUDGES:

de Jersey CJ, Williams JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal allowed
2. For the sentence of three and a half years detention imposed in respect of the offence of manslaughter, substitute detention for five years
3. The orders made on 27 May 2004 are otherwise to stand

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where the respondent pleaded guilty to the manslaughter of a taxi driver – where the Attorney-General appeals on the ground that the three and a half year detention imposed in respect of the manslaughter is manifestly inadequate – whether the sentence imposed in respect of the manslaughter is manifestly inadequate

Juvenile Justice Act 1992 (Qld), s 176(3)(a), s 150(2)(e)

Bryan v R; Lewis v Attorney-General of Queensland [2004] HC Trans 246, 23 June 2004, cited
Everett v R (1994) 181 CLR 295, cited
R v A [1995] QCA 148; (1995) 79 A Crim R 100, considered
R v Bates; R v Baker [2002] QCA 174; CA No 295 of 2001, CA No 329 of 2001, 17 May 2002, considered
R v Briody [2002] QCA 364; CA No 135 of 2002, 17 September 2002, considered
R v Kazakoff; ex parte Attorney-General [1998] QCA 459; CA No 236 of 1998, 27 August 1998, cited
R v K; R v K; ex parte Attorney-General of Queensland [1998] QCA 284; CA No 185 of 1998, CA No 189 of 1998, 22 September 1998, considered
R v Liekefett; ex parte Attorney-General [1973] Qd R 355, cited
R v Nagy [2003] QCA 175; [2004] 1 Qd R 63, cited
R v Simeon [2000] QCA 470; CA No 167 of 2000, 21 November 2000, considered

COUNSEL:

M J Copley for the appellant
B G Devereaux for the respondent

SOLICITORS:

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

de JERSEY CJ: The respondent, when aged 16 years, pleaded guilty to the manslaughter of a taxi driver on 27 December 2002, to stealing his property, and to the summary offences of obstructing police officers and assaulting police officers in the course of his subsequent apprehension. For the manslaughter, he was sentenced to three and a half years detention, to be released after serving 50 per cent…

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 AS; ex parte

Details

AGLC: R v AS; ex parte [2004] QCA 259
Case: [2004] QCA 259
Decision Date: 30 July 2004

CaseChat Overview and Summary

The appeal involved the Attorney-General challenging the sentence imposed on the respondent, who had pleaded guilty to the manslaughter of a taxi driver. The court was tasked with determining whether the sentence of three and a half years detention was manifestly inadequate. The case was heard in the relevant appellate court, where the Attorney-General argued that the punishment imposed was insufficient given the severity of the crime.

The court considered the principles of sentencing, particularly the need to ensure that the punishment reflects the seriousness of the offence. The Attorney-General's appeal was based on the contention that the original sentence did not adequately reflect the gravity of the crime of manslaughter. The court had to weigh the arguments presented and decide if the original sentence was indeed manifestly inadequate.

In its judgment, the court found that the original sentence was indeed too lenient given the circumstances of the case. The court held that the three and a half year detention was manifestly inadequate and substituted a sentence of five years detention. The court's decision was grounded in the need to ensure that the punishment appropriately matched the seriousness of the offence.

The court allowed the appeal, substituting the original sentence of three and a half years detention with a sentence of five years detention. All other orders made on 27 May 2004 were to remain in place. The decision underscores the importance of ensuring that sentences are proportionate to the crimes committed, particularly in cases involving offences against the person.

Orders

Orders of the court

1. Appeal allowed

2. For the sentence of three and a half years detention imposed in respect of the offence of manslaughter, substitute detention for five years

3. The orders made on 27 May 2004 are otherwise to stand

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.

Citations

AGLC Citation

R v AS; ex parte [2004] QCA 259

Most Recent Citation

R v Dullroy and Yates; ex parte [2005] QCA 219

Cases citing this decision · 12 of 12 shown

R v Samuel (a pseudonym)
[2024] QSC 11 Para 2

…es, the first principle stated is that the “community should be protected from offences”. [4] R v AS; Ex parte Attorney-General (Qld) [2004] QCA 259 at [26]-[27].…
R v YTZ; Ex parte; R v YTZ
[2023] QCA 87 Para 9

…The Attorney also relied on selected extracts from previous appellate decisions such as R v AS; Ex parte Attorney-General (Qld) [2004] QCA 259 at [26] where observations were made to the effect that certain crimes committed by children are “so grave” that ordinary principles of sentencing outweigh the youth justi…
R v BXY
[2023] QSC 42 Para 1

…The same conclusion is reached in relation to the case of R v AS; ex parte A-G (Qld) [2004] QCA 259. In that case, the offender, who was just over 15 at the time of the offence, was sentenced, following a successful Attorney-General’s appeal, to five years’ detention for the manslaughter of a taxi driver. He was…
R v Way; Ex parte
[2013] QCA 398 Para 1

…re other first instance cases involving youths sentenced under the YJ Act for attempted murder, counsel handed up the decision of R v RJI .[29] [28][2004] QCA 259, [16]. [29]Unreported, Supreme Court of Queensland, Indictment Nos 31 and 32 of 2013, North J, 18 October 2013.…
R v Auer; ex parte
[2011] QCA 222 Para 1

…sentence at the lower end of the appropriate range. That view has since been held to have been erroneous.[10] [10] R v AS; ex parte A-G (Qld) [2004] QCA 259, [30]; R v Lacey; ex parte A-G (Qld) [2009] QCA 274, [149] - [153].…
Ali v R
[2010] NSWCCA 35

…LR 357 Jalloh v R [2009] NSWCCA 295 R v Smith (NSWCCA, 7 July 1988, Lee, McInerney and Loveday JJ, BC8801751) R v AS; Ex parte Attorney General (Qld) [2004] QCA 259 R v Cutts [2005] QCA 306 R v Way [2004] 60 NSWLR 168 R v Hibberd [2009] NSWCCA 20 R v Porteous [2005] NSWCCA 115 Jeffries v R [2008] NSWCCA 144; 185…
R v Lacey; ex parte Attorney-General
[2009] QCA 274 Para 1

…nder s 669A(1) in the way discussed in Everett v The Queen [148] because of the term "unfettered".[149] [146][2004] HC trans 246 (23 June 2004). [147][2004] QCA 259. [148](1994) 181 CLR 295. Everett concerned the construction of s 402(1)(c) Criminal Code (Tas) which enabled the Attorney-General to apply for leave…
R v Kirby; Ex parte A-G (Qld)
[2009] QCA 35 Para 1

…jeopardy for an offender: see R v Quick; ex parte A-G (Qld) (2006) 166 A Crim R 588, [2006] QCA 477 at [15], [43]; and see R v AS; ex parte A-G (Qld) [2004] QCA 259 at [30], R v Dullroy and Yates; ex parte A-G (Qld) [2005] QCA 219 at [27], and R v KU & Ors; ex parte A-G (Qld) [2008] QCA 154 at [156].…
R v. Wilkins; ex parte A-G (Qld)
[2008] QCA 272 Para 1

…decision in R v Lude; R v Love [4] supports the imposition of a custodial sentence for these offences. [1](2002) 134 A Crim R 170; [2002] QCA 364. [2][2004] QCA 259 at [16]. [3](2005) 156 A Crim R 128; [2005] QCA 350 at 132 [14]. [4][2007] QCA 319.…
R v KU; ex parte Attorney-General (No 2)
[2008] QCA 154

…305; [1982] HCA 55, applied R v AS; ex parte A-G (Qld) [2004] QCA 259, cited R v BBE [2006] QCA 532, considered R v Bell; ex parte Attorney-General (Qld) [1994] QCA 220, considered R v Bielefeld [2002] QCA 369, considered R v Black; R v Sutton [2004] QCA 369, cited R v C [1996] QCA 014, cited R v Casey , unrepor…
R v. Johnson ; ex parte A-G (Qld) ; R v Ward; ex parte A-G (Qld)
[2007] QCA 76 Para 1

…The Judge was substantially influenced by the decision of the Court of Appeal in AS [2004] QCA 259, which concerned the manslaughter of a taxi driver by an offender then sixteen years of age. AS was sentenced as a child, and had pleaded guilty. Pursuant to s 176(3)(a) of the Juvenile Justice Act , the maximum app…
R v Dullroy and Yates; ex parte
[2005] QCA 219

…154 CLR 606, cited R v AS; ex parte A-G (Qld) [2004] QCA 259; CA No 183 of 2004, 30 July 2004, cited R v Bainbridge, Cullen and Ludwicki [1993] QCA 428; (1993) 74 A Crim R 265, cited R v Breeze [1999] QCA 303; (1999) 106 A Crim R 441, followed R v Clark [1998] QCA 477; CA No 283 of 1998, 8 October 1998, followed…

View all 12 citing cases →

Cases cited in this decision · 8 of 8 shown

R v Nagy
[2003] QCA 175

…of 1998, CA No 189 of 1998, 22 September 1998, considered R v Liekefett; ex parte Attorney-General [1973] Qd R 355, cited R v Nagy [2003] QCA 175; [2004] 1 Qd R 63, cited R v Simeon [2000] QCA 470; CA No 167 of 2000, 21 November 2000, considered COUNSEL: M J Copley for the appellant B G Devereaux for the respond…
R v Briody
[2002] QCA 364 Para 1

…Reference to other cases is not of great assistance here, although the helpful summary by Williams JA in R v Briody [2002] QCA 364 of sentences imposed on youthful offenders for armed robbery suggests that in a case like this, where a life has been lost, the sentence should have been more substantial than three a…
R v Bates; R v Baker
[2002] QCA 174 Para 1

…s examples” in most cases the sentence imposed has required the offender to serve quite a number of years in actual custody; R v Bates; R v Baker [2002] QCA 174 at para [56]. The only “unusual” feature of this case is the age of the offender at the time of the killing. Whilst that cannot be ignored it is, in my v…
R v Simeon
[2000] QCA 470 Para 1

…etention. Section 150(2)(e) obliged the Judge to impose the shortest appropriate period of detention. Although only of marginal relevance, R v Simeon [2000] QCA 470, which concerned an offence of manslaughter committed by a 27 year old offender, in the course of a party, by the delivery of a punch, was sentenced…
R v K ex parte Attorney-General
[1998] QCA 284 Para 1

…Her Honour discussed R v A (1995) 79 A Crim R 100 and R v K; R v K; ex parte Attorney-General of Queensland [1998] QCA 284. In A , for roughly similar offending, a penalty of three years probation was imposed following trial. That 16 year old offender had served nine months in custody prior to being sentenced. As…
R v Kazakoff
[1998] QCA 459 Para 1

…wed with respect to other persons in society whose occupation places them at greater risk of being assaulted; R v Kazakoff; ex parte Attorney-General [1998] QCA 459 and R v Nagy [2004] 1 Qd R 63.…
R v A
[1995] QCA 148

…an v R; Lewis v Attorney-General of Queensland [2004] HC Trans 246, 23 June 2004, cited Everett v R (1994) 181 CLR 295, cited R v A [1995] QCA 148; (1995) 79 A Crim R 100, considered R v Bates; R v Baker [2002] QCA 174; CA No 295 of 2001, CA No 329 of 2001, 17 May 2002, considered R v Briody [2002] QCA 364; CA No…
Everett v the Queen
[1994] HCA 49 Para 1

…approach taken by appellate courts to such matters, and referred in particular to passages in the reasoning of the High Court in Everett v The Queen (1994) 181 CLR 295. However, it is important to remember that s 669A of the Criminal Code confers a right of appeal on the Attorney-General and the court has an “unfett…

Legislation cited in this decision · 1

Juvenile Justice Act 1992 (Qld)
176(3)(a) 2 mentions (from Para 1)

CITATION:	R v AS; ex parte A-G (Qld) [2004] QCA 259
PARTIES:	R v AS (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 183 of 2004 SC No 175 of 2004 SC No 179 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	30 July 2004
DELIVERED AT:	Brisbane
HEARING DATE:	28 July 2004
JUDGES:	de Jersey CJ, Williams JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal allowed 2. For the sentence of three and a half years detention imposed in respect of the offence of manslaughter, substitute detention for five years 3. The orders made on 27 May 2004 are otherwise to stand
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where the respondent pleaded guilty to the manslaughter of a taxi driver – where the Attorney-General appeals on the ground that the three and a half year detention imposed in respect of the manslaughter is manifestly inadequate – whether the sentence imposed in respect of the manslaughter is manifestly inadequate
Juvenile Justice Act 1992 (Qld), s 176(3)(a), s 150(2)(e) Bryan v R; Lewis v Attorney-General of Queensland [2004] HC Trans 246, 23 June 2004, cited Everett v R (1994) 181 CLR 295, cited R v A [1995] QCA 148; (1995) 79 A Crim R 100, considered R v Bates; R v Baker [2002] QCA 174; CA No 295 of 2001, CA No 329 of 2001, 17 May 2002, considered R v Briody [2002] QCA 364; CA No 135 of 2002, 17 September 2002, considered R v Kazakoff; ex parte Attorney-General [1998] QCA 459; CA No 236 of 1998, 27 August 1998, cited R v K; R v K; ex parte Attorney-General of Queensland [1998] QCA 284; CA No 185 of 1998, CA No 189 of 1998, 22 September 1998, considered R v Liekefett; ex parte Attorney-General [1973] Qd R 355, cited R v Nagy [2003] QCA 175; [2004] 1 Qd R 63, cited R v Simeon [2000] QCA 470; CA No 167 of 2000, 21 November 2000, considered
COUNSEL:	M J Copley for the appellant B G Devereaux for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent