R v Caf - [2008] QCA 195

SUPREME COURT OF QUEENSLAND

CITATION:

R v CAF [2008] QCA 195

PARTIES:

R
v
CAF
(applicant/appellant)

FILE NO/S:

CA No 134 of 2008
DC No 126 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

18 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

14 July 2008

JUDGES:

McMurdo P, Muir JA and Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   Application for leave to appeal granted.

2.   Appeal allowed.

3.   Sentence imposed at first instance set aside.

4. Instead, on each count order under s 180 Juvenile Justice Act that the applicant be sentenced to 175 days detention and that he be placed on 12 months probation on the usual terms and conditions under s 193 Juvenile Justice Act together with the further conditions that he undergo such counselling or treatment as directed by the chief executive for substance abuse and in particular alcohol abuse, and that under s 193(3) he comply with the probation order outside the State.

5.   The 91 days pre-sentence custody from 19 November 2007 to 18 February 2008 is declared as time served under the detention order.

6. The applicant's legal representatives are directed to explain to him the purpose and effect of these orders under s 158 Juvenile Justice Act.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – JUVENILE OFFENDERS – RELEVANT PRINCIPLES – applicant pleaded guilty to two counts of assault occasioning bodily harm in company – applicant involved in fracas where two innocent passers-by were set upon by large group of teenagers – applicant held on to fence while he jumped on the head of the complainant, who had been knocked to the ground – applicant served 91 days pre-sentence custody – applicant had begun to rehabilitate before sentence – applicant had educational and employment prospects – applicant ashamed and remorseful – judge sentenced applicant to 15 months detention, to be released after serving 50 per cent of the detention on a supervised release order – convictions were recorded – principles of sentencing juvenile offenders – whether detention imposed was appropriate at all and for the least time justified in the circumstances – whether sentence was manifestly excessive

Criminal Code 1899 (Qld), s 339(1), s 339(3)
Juvenile Justice Act 1992 (Qld), 3(2), s 150(1), s 150(2), s 158, s 175(1)(g)(ii), s 180, s 193(3), s 196(2), s 208, s 221(1)(a), s 221(3), Sch 1 'Charter of juvenile justice principles', 8(b), 16, 17

R v E; ex parte A-G (Qld) (2002) 134 A Crim R 486; [2002] QCA 417, cited
R v Dempsey and Perks; ex parte A-G [1999] QCA 520, cited
R v D [2000] QCA 102, cited
R v S [2003] QCA 55, cited

COUNSEL:

M C Chowdhury for the applicant/appellant
G P Cash for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant/appellant
Director of Public Prosecutions…

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 Caf

Details

AGLC: R v Caf [2008] QCA 195
Case: [2008] QCA 195
Decision Date: 18 July 2008

CaseChat Overview and Summary

The case of R v Caf was heard before the court where the applicant had pleaded guilty to two counts of assault occasioning bodily harm in company. The incident involved a large group of teenagers attacking two innocent passers-by, during which the applicant held on to a fence while jumping on the head of one of the complainants who had been knocked to the ground. The applicant had already served 91 days in pre-sentence custody and had shown signs of rehabilitation, remorse, and had educational and employment prospects. The sentencing judge imposed a 15-month detention sentence with 50 per cent to be served before release under a supervised release order. The applicant appealed against the sentence, arguing it was excessive.

The court was required to determine whether the sentence imposed was appropriate under the principles of sentencing juvenile offenders and whether it was the least time justified in the circumstances. The court had to consider the principles of rehabilitation, deterrence, and proportionality in sentencing the juvenile offender. It was also necessary to assess whether the sentence was manifestly excessive in light of the applicant's remorse, rehabilitation efforts, and prospects for the future.

The court found that the sentence was manifestly excessive. It held that the judge had not adequately taken into account the principles of sentencing juvenile offenders and had failed to consider the appropriate balance between punishment and rehabilitation. The court also noted that the sentence did not reflect the applicant's remorse, efforts at rehabilitation, and prospects for the future. The appeal was allowed, and the original sentence was set aside. In its place, the court ordered that the applicant be sentenced to 175 days detention and placed on 12 months probation with specific conditions for substance abuse treatment and compliance with the probation order outside the state. The 91 days pre-sentence custody was declared as time served under the detention order. The applicant's legal representatives were directed to explain the purpose and effect of these orders.

Orders

Orders of the court

1. Application for leave to appeal granted.

2. Appeal allowed.

3. Sentence imposed at first instance set aside.

4. Instead, on each count order under s 180 Juvenile Justice Act that the applicant be sentenced to 175 days detention and that he be placed on 12 months probation on the usual terms and conditions under s 193 Juvenile Justice Act together with the further conditions that he undergo such counselling or treatment as directed by the chief executive for substance abuse and in particular alcohol abuse, and that under s 193(3) he comply with the probation order outside the State.

5. The 91 days pre-sentence custody from 19 November 2007 to 18 February 2008 is declared as time served under the detention order.

6. The applicant's legal representatives are directed to explain to him the purpose and effect of these orders under s 158 Juvenile Justice Act.

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 CAF [2008] QCA 195
PARTIES:	R v CAF (applicant/appellant)
FILE NO/S:	CA No 134 of 2008 DC No 126 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	18 July 2008
DELIVERED AT:	Brisbane
HEARING DATE:	14 July 2008
JUDGES:	McMurdo P, Muir JA and Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal granted. 2. Appeal allowed. 3. Sentence imposed at first instance set aside. 4. Instead, on each count order under s 180 Juvenile Justice Act that the applicant be sentenced to 175 days detention and that he be placed on 12 months probation on the usual terms and conditions under s 193 Juvenile Justice Act together with the further conditions that he undergo such counselling or treatment as directed by the chief executive for substance abuse and in particular alcohol abuse, and that under s 193(3) he comply with the probation order outside the State. 5. The 91 days pre-sentence custody from 19 November 2007 to 18 February 2008 is declared as time served under the detention order. *6. The applicant's legal representatives are directed to explain to him the purpose and effect of these orders under s 158 Juvenile Justice Act.*
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – JUVENILE OFFENDERS – RELEVANT PRINCIPLES – applicant pleaded guilty to two counts of assault occasioning bodily harm in company – applicant involved in fracas where two innocent passers-by were set upon by large group of teenagers – applicant held on to fence while he jumped on the head of the complainant, who had been knocked to the ground – applicant served 91 days pre-sentence custody – applicant had begun to rehabilitate before sentence – applicant had educational and employment prospects – applicant ashamed and remorseful – judge sentenced applicant to 15 months detention, to be released after serving 50 per cent of the detention on a supervised release order – convictions were recorded – principles of sentencing juvenile offenders – whether detention imposed was appropriate at all and for the least time justified in the circumstances – whether sentence was manifestly excessive Criminal Code 1899 (Qld), s 339(1), s 339(3) Juvenile Justice Act 1992 (Qld), 3(2), s 150(1), s 150(2), s 158, s 175(1)(g)(ii), s 180, s 193(3), s 196(2), s 208, s 221(1)(a), s 221(3), Sch 1 'Charter of juvenile justice principles', 8(b), 16, 17 R v E; ex parte A-G (Qld) (2002) 134 A Crim R 486; [2002] QCA 417, cited R v Dempsey and Perks; ex parte A-G [1999] QCA 520, cited R v D [2000] QCA 102, cited R v S [2003] QCA 55, cited
COUNSEL:	M C Chowdhury for the applicant/appellant G P Cash for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions…