R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467
PARTIES:
R v CAY, Daniel Stephen (respondent) GERSCH, Llewellyn Charles (respondent) SCHELL, Aaron Daniel (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:
CA No 241 of 2005 CA No 242 of 2005 CA No 243 of 2005 DC No 149 of 2005
DIVISION:
Court of Appeal
PROCEEDING:
Sentence Appeal by A-G (Qld)
ORIGINATING COURT:
District Court at Toowoomba
DELIVERED ON:
14 December 2005
DELIVERED AT:
Brisbane
HEARING DATE:
2 December 2005
JUDGES:
de Jersey CJ, Keane JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:
In each matter, the appeal against sentence by the Attorney-General is dismissed
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 - OTHER OFFENCES - where each respondent pleaded guilty to one count of armed robbery and was sentenced to two years probation - where the learned sentencing judge ordered that no convictions should be recorded - where the offence involved the robbery of a service station at night - where the respondents were each aged between 17 and 18 years of age at the time of the offence - where the offence was carried out in an incompetent and amateurish fashion - where the respondents were apprehended soon after the robbery took place - where each of the respondents had spent time in custody prior to sentence - where extensive submissions were made on behalf of each respondent before the learned sentencing judge as to why convictions should not be recorded to which the Crown made no response - where, on appeal, the Attorney-General did not seek to challenge the imposition of a non-custodial sentence but submitted that the seriousness of the offence meant that convictions ought to have been recorded - whether the learned sentencing judge had erred in deciding to exercise his discretion to order that no convictions be recorded
[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
AGLC
R v Cay, Gersch & Schell; Ex parte Attorney-General [2005] QCA 467
Case
[2005] QCA 467
Decision Date
CaseChat Overview and Summary
In this matter, the respondents, Cay, Gersch and Schell, were each convicted of one count of armed robbery and were sentenced to two years' probation by the learned sentencing judge. The Attorney-General sought to appeal against the decision of the learned sentencing judge not to record a conviction on the ground that the offence was serious enough to warrant the recording of a conviction. The court was required to decide whether the sentencing judge had erred in deciding to exercise his discretion under section 12 of the Penalties and Sentences Act 1992 (Qld) not to record a conviction.
The court noted that the offence involved the robbery of a service station at night by three young men in an incompetent and amateurish fashion. The respondents were apprehended soon after the robbery took place, and each of the respondents had spent time in custody prior to sentence. The court found that the learned sentencing judge had considered the submissions made on behalf of each respondent and had exercised his discretion to order that no convictions be recorded. The court found that the learned sentencing judge had not erred in deciding to exercise his discretion to order that no convictions be recorded.
The appeal against sentence by the Attorney-General is dismissed in each matter.
Orders
Orders of the court
In each matter, the appeal against sentence by the Attorney-General is dismissed