R v Brookes - [2001] QCA 112

[2001] QCA 112

COURT OF APPEAL

McPHERSON JA
WILLIAMS JA
BYRNE J

CA No 7 of 2001

THE QUEEN

MICHAEL JAMES BROOKES

BRISBANE

..DATE 22/03/2001

JUDGMENT

McPHERSON JA: The applicant seeks leave to appeal against a sentence of three months imprisonment imposed after his own plea of guilty in the District Court in respect of a single count of robbery in company with personal violence.

The circumstances of the offence are that on 14 December 1999 at about six in the evening, the complainant was waiting at the Murarrie Railway Station. He was approached by the applicant and two other individuals, H and J. Both the other two associates were, it may be noticed, juveniles.

J asked the complainant and one of his friends for money and then moved away, only to return with H. A demand was then made for the complainant's watch and when it was not delivered J punched the complainant on the right jaw before taking his skate board. He again demanded the watch and hit the complainant over the head with the skateboard. H took the complainant's hat, demanded his shoes, and then punched him in the right eye.

When the complainant attempted to escape from this dilemma, the applicant Brookes who had been some little distance away until then, moved around so that the complainant was confronted by all three youths. The complainant was punched again by the juveniles and, on this occasion, the applicant, and he was kicked by H and by J.

While he was on the ground, the applicant took the complainant's shoes and the offenders removed themselves from the scene. As a result of this treatment, the complainant suffered a black eye, a cut lip, swelling to the face and back of the head, and soreness to the stomach and rib area. He was also shocked and dizzy.

The personal circumstances of the applicant are that he was aged 18 at the time of the offence and 19 at the date of sentencing. He has a prior criminal record including dangerous driving, two counts of unlawful use of motor vehicles, wilful damage at night, four counts of stealing and attempted unlawful use of a motor vehicle, two counts of receiving, three counts of breaking, entering and stealing and, on a later occasion, unlawful use of a motor vehicle, three counts of breaking, entering and stealing and so on.

These convictions were recorded in both the Children's Court and the District Court during 1997 and 1998, the last of these offences having been in late 1998.

The maximum penalty for an offence of this kind is 14 years imprisonment. On behalf of the applicant it is submitted that the sentence was manifestly excessive, that he was not the principal protagonist in the criminal activity, that he was 18 years old at the time and had no previous convictions for violence, and, principally, that the Judge under-rated, or took insufficient account of, the prospects of rehabilitation of this applicant.

In that…

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 Brookes

Details

AGLC: R v Brookes [2001] QCA 112
Case: [2001] QCA 112
Decision Date: 22/03/2001

CaseChat Overview and Summary

In this case, the applicant, Michael James Brookes, sought leave to appeal against a sentence of three months imprisonment imposed after his guilty plea in the District Court in respect of a single count of robbery in company with personal violence. The robbery occurred at Murarrie Railway Station on 14 December 1999, where Brookes and two other individuals, H and J, assaulted a complainant, demanding his belongings. Brookes was not the primary aggressor but played a significant role by joining the assault and taking the complainant's shoes. The court needed to decide whether the sentence imposed was manifestly excessive, whether Brookes' role in the crime warranted a different sentence, and whether the prospects of rehabilitation were adequately considered.

The court considered the factors influencing the sentence, including the planning involved in the offence, the use of violence without provocation, and the disparity in sentencing between Brookes and his juvenile co-offender, H. The court noted that Brookes had a history of criminal activity, including several convictions in the Children's Court and the District Court, and had previously benefited from non-custodial penalties. However, the court found that the sentence of three months imprisonment was consistent with penalties imposed in similar cases and did not consider it excessive. The court also rejected the argument regarding the disparity in sentencing between Brookes and H, stating that the different sentencing regimes for juveniles and adults should not be equated.

The court concluded that the sentencing judge did not err in imposing the sentence and that Brookes' prospects of rehabilitation did not warrant a lesser penalty. The application for leave to appeal against the sentence was dismissed, and a warrant was issued for Brookes' apprehension. The court's reasoning emphasised the seriousness of the offence, the need for deterrence, and the appropriate application of sentencing principles in relation to Brookes' criminal history and the nature of the offence.

Orders