R v Boyd - [2009] QCA 8

SUPREME COURT OF QUEENSLAND

CITATION:

R v Boyd [2009] QCA 8

PARTIES:

R
v
BOYD, Adam Leigh
(applicant)

FILE NO/S:

CA No 282 of 2008
DC No 129 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence application

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

13 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

6 February 2009

JUDGES:

Keane, Muir and Fraser JJA
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 – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – PARITY BETWEEN CO-OFFENDERS – where applicant and two co-offenders convicted on pleas of guilty for one count of burglary with assault and three counts of wilful damage – where applicant sentenced to two years imprisonment on burglary count and six months imprisonment on each of the wilful damage counts – where each co-offender sentenced to 12 months imprisonment on the burglary count and six months imprisonment on each of the wilful damage counts – where sentencing judge found applicant to be the “instigator” of events – where applicant had previous convictions for common assault and stealing and co-offenders had no previous convictions – whether sentencing judge erred in finding that the applicant was the “instigator” of events – whether disparity between sentences of applicant and two co-offenders

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited
R v Fitzgerald [2004] QCA 241, cited

COUNSEL:

K Prskalo for the applicant
S G Bain for the respondent

SOLICITORS:

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

KEANE JA: I have had the advantage of reading a draft of the reasons for judgment prepared by Fraser JA. I agree with those reasons and with the order proposed by his Honour.

MUIR JA: I agree with the reasons of Fraser JA and with the order he proposes.

FRASER JA: On 21 October 2008 the applicant was convicted on his pleas of guilty and sentenced for one count of burglary with assault and three counts of wilful damage. The grounds of the applicant’s application for leave to appeal against sentence are that the sentence is manifestly excessive when compared with the sentences passed on his co-offenders and that the sentence lacks parity with those other sentences.

The circumstances of the offences

An agreed statement of facts tendered at the sentence hearing recites that on 21 January 2008 the applicant (then 24 years of age) and friends of his, Bates and Hansen, were drinking at a hotel where they had expressed a common dislike for the complainant. They drove to the complainant’s house with the intention of giving him a “touch up”. Bates and Hansen unsuccessfully attempted to persuade the complainant to come out and then they entered the…

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 Boyd

Details

AGLC: R v Boyd [2009] QCA 8
Case: [2009] QCA 8
Decision Date: 13 February 2009

CaseChat Overview and Summary

The applicant, Boyd, along with two co-offenders, was convicted on pleas of guilty for one count of burglary with assault and three counts of wilful damage. Boyd was sentenced to two years imprisonment on the burglary count and six months imprisonment on each of the wilful damage counts. Each of his co-offenders was sentenced to 12 months imprisonment on the burglary count and six months imprisonment on each of the wilful damage counts. Boyd applied for leave to appeal against his sentence, arguing that the sentencing judge erred in finding him to be the “instigator” of the events and that the disparity between his sentence and that of his co-offenders was unjust.

The legal issues before the court were whether the sentencing judge erred in finding that Boyd was the “instigator” of the events and whether the disparity between his sentence and that of his co-offenders was unjust. The court examined the sentencing principles relevant to the case, including the need for parity between co-offenders and the need to ensure that sentences reflect the relative culpability of the offender. The court also considered the sentencing judge's findings and the evidence presented at the sentencing hearing.

The court found that the sentencing judge did not err in finding that Boyd was the “instigator” of the events. The court held that the sentencing judge was entitled to find that Boyd was the “instigator” based on the evidence presented at the sentencing hearing, including Boyd's previous convictions for common assault and stealing. The court also found that the disparity between Boyd's sentence and that of his co-offenders was not unjust. The court held that the sentencing judge was entitled to impose a harsher sentence on Boyd because of his previous convictions and his role as the “instigator” of the events. The court concluded that the sentencing judge had properly exercised his discretion in imposing the sentences and that there was no basis for interfering with the sentences on appeal.

The application for leave to appeal against sentence was refused.

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 Boyd [2009] QCA 8
PARTIES:	R v BOYD, Adam Leigh (applicant)
FILE NO/S:	CA No 282 of 2008 DC No 129 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence application
ORIGINATING COURT:	District Court at Mackay
DELIVERED ON:	13 February 2009
DELIVERED AT:	Brisbane
HEARING DATE:	6 February 2009
JUDGES:	Keane, Muir and Fraser JJA 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 – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – PARITY BETWEEN CO-OFFENDERS – where applicant and two co-offenders convicted on pleas of guilty for one count of burglary with assault and three counts of wilful damage – where applicant sentenced to two years imprisonment on burglary count and six months imprisonment on each of the wilful damage counts – where each co-offender sentenced to 12 months imprisonment on the burglary count and six months imprisonment on each of the wilful damage counts – where sentencing judge found applicant to be the “instigator” of events – where applicant had previous convictions for common assault and stealing and co-offenders had no previous convictions – whether sentencing judge erred in finding that the applicant was the “instigator” of events – whether disparity between sentences of applicant and two co-offenders Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited R v Fitzgerald [2004] QCA 241, cited
COUNSEL:	K Prskalo for the applicant S G Bain for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent