R v Black - [2010] QCA 287

SUPREME COURT OF QUEENSLAND

CITATION:

R v Black [2010] QCA 287

PARTIES:

R
v
BLACK, Kenneth Barnard
(applicant)

FILE NO/S:

CA No 132 of 2010
DC No 84 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

22 October 2010

DELIVERED AT:

Brisbane

HEARING DATE:

30 September 2010

JUDGES:

McMurdo P, White JA and Jones 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 – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where the applicant pleaded guilty to one count of burglary and stealing, two counts of burglary and assault occasioning bodily harm and one count of burglary and common assault – where the applicant was aged 20 – where the applicant’s two co-offenders were aged 17 and 21 years – where the offenders were charged jointly on the same indictment – where different sentences were imposed on each offender – where the applicant was sentenced to three and a half years imprisonment – where the applicant contends that his penalty should have been the same as that of the youngest co-offender (two and a half years) – where the eldest offender received a higher sentence than the applicant (four years) – where the applicant had a previous criminal history – where the applicant co-operated with police – where the eldest offender was the ringleader and the youngest offender was his brother – whether the learned sentencing judge has achieved parity in sentencing the offenders – whether the sentences imposed give rise to a justifiable sense of grievance on the part of the applicant

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, applied
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, applied

R v Leu; R v Togia (2008) 186 A Crim R 240; [2008] QCA 201, cited

COUNSEL:

The applicant appeared on his own behalf via video link
M J Copley SC for the respondent

SOLICITORS:

The applicant appeared on his own behalf via video link

Director of Public Prosecutions (Queensland) for the respondent

[1] McMURDO P: The application for leave to appeal against sentence should be refused for the reasons given by Jones J.

[2] WHITE JA: I agree with the reasons of Jones J for refusing leave to appeal the sentence imposed below.

[3] JONES J: The applicant Kenneth Barnard Black seeks leave to appeal against the sentences imposed on him after pleading guilty to four offences in the District Court at Rockhampton on 13 May 2010. The four offences were committed in the space of one and a half hours on 25 October 2009. The offences and sentences imposed were as follows:

Burglary and stealing (Count 1) 3 years imprisonment

Burglary and commit assault occasioning bodily harm (Count 2) 3 ½ years imprisonment

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.

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Details

Case: [2010] QCA 287
Decision Date: 22 October 2010

CaseChat Overview and Summary

The applicant, Black, appealed against his sentence in the Court of Appeal, having pleaded guilty to several charges of burglary and assault. Black was sentenced to three and a half years imprisonment, whereas his two co-offenders received two and a half years and four years imprisonment respectively. Black argued that the disparity in sentences between him and his co-offenders, who were aged 17, 20, and 21, was unjust, given the youngest co-offender received a lesser sentence despite being his brother and the ringleader of the group. The central issue before the court was whether the sentences imposed by the learned sentencing judge achieved parity among the co-offenders and whether the applicant's sentence gave rise to a justifiable sense of grievance.

The court examined the sentencing principles applicable to the case, including the need for parity among co-offenders and the consideration of individual circumstances. It noted that the applicant had a prior criminal history and did not display the same level of remorse or cooperation as his youngest co-offender. The court further observed that the eldest co-offender, who was the ringleader, received a harsher sentence, which supported the overall sentencing structure. The court concluded that the sentencing judge had appropriately balanced the aggravating and mitigating factors, and that the sentences imposed did not give rise to a justifiable sense of grievance for the applicant.

In light of the above, the court found no basis to interfere with the sentencing decision. The appeal against sentence was dismissed, and leave to appeal was refused. The original sentences imposed by the trial judge remained in place.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

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 Black [2010] QCA 287
PARTIES:	R v BLACK, Kenneth Barnard (applicant)
FILE NO/S:	CA No 132 of 2010 DC No 84 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	22 October 2010
DELIVERED AT:	Brisbane
HEARING DATE:	30 September 2010
JUDGES:	McMurdo P, White JA and Jones 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 – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where the applicant pleaded guilty to one count of burglary and stealing, two counts of burglary and assault occasioning bodily harm and one count of burglary and common assault – where the applicant was aged 20 – where the applicant’s two co-offenders were aged 17 and 21 years – where the offenders were charged jointly on the same indictment – where different sentences were imposed on each offender – where the applicant was sentenced to three and a half years imprisonment – where the applicant contends that his penalty should have been the same as that of the youngest co-offender (two and a half years) – where the eldest offender received a higher sentence than the applicant (four years) – where the applicant had a previous criminal history – where the applicant co-operated with police – where the eldest offender was the ringleader and the youngest offender was his brother – whether the learned sentencing judge has achieved parity in sentencing the offenders – whether the sentences imposed give rise to a justifiable sense of grievance on the part of the applicant Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, applied Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, applied R v Leu; R v Togia (2008) 186 A Crim R 240; [2008] QCA 201, cited
COUNSEL:	The applicant appeared on his own behalf via video link M J Copley SC for the respondent
SOLICITORS:	The applicant appeared on his own behalf via video link Director of Public Prosecutions (Queensland) for the respondent

Burglary and stealing (Count 1)	3 years imprisonment
Burglary and commit assault occasioning bodily harm (Count 2)	3 ½ years imprisonment