R v Cco - [2020] QCA 231

SUPREME COURT OF QUEENSLAND

CITATION:

R v CCO [2020] QCA 231

PARTIES:

R
v
CCO
(applicant)

FILE NO/S:

CA No 104 of 2020
DC No 222 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Rockhampton – Date of Sentence: 7 May 2020 (Burnett DCJ)

DELIVERED ON:

27 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

19 August 2020

JUDGES:

Philippides and McMurdo JJA and Henry J

ORDERS:

1.   Application for leave to appeal sentence granted.

2.   Appeal allowed.

3.   The sentence imposed below is varied only to the extent that the order releasing the offender under the supervision of the Chief Executive for nine months (the probation order) is set aside.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant child pleaded guilty to dangerous operation of a motor vehicle causing grievous bodily harm contrary to s 328A(4)(a) Criminal Code (Qld) – where the applicant child drove a utility in a vacant lot, performing reckless fishtail manoeuvres, while the complainant and another child were in the back tray of the utility – where the utility rolled over and briefly rested atop the complainant’s back – where the sentencing Judge imposed a restorative justice order under s 192B Youth Justice Act 1992 (Qld) and a probation order under s 193 Youth Justice Act 1992 (Qld) – where the sentencing Judge’s reasons for imposing both orders are not clear – whether the imposition of both orders was collectively so unreasonable or plainly unjust to compel a conclusion that his Honour must have erred, notwithstanding that the nature of the error is not discoverable

Youth Justice Act 1992 (Qld), s 33, s 35, s 162, s 163, s 177, s 178C, s 192A, s 194, s 192B, s 193

House v The King (1936) 55 CLR 499; [1936] HCA 40, applied
R v Patrick (a pseudonym); R v Patrick (a pseudonym); Ex parte Attorney-General (Qld)[2020] QCA 51, applied
R v PBD[2019] QCA 59, considered

COUNSEL:

C Smith for the applicant
D Nardone for the respondent

SOLICITORS:

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

PHILIPPIDES JA: I agree with the orders proposed by Henry J for the reasons given by his Honour.
McMURDO JA: I agree with Henry J.
HENRY J: The applicant child pleaded guilty to dangerous operation of a motor vehicle causing grievous bodily harm. He was sentenced to a restorative justice order and nine months’ probation. He was also disqualified from holding or obtaining a driver’s licence for 12 months and no conviction was recorded. He seeks leave to appeal the sentence, complaining that he should not have been sentenced to probation in addition to a restorative justice order.
Background
The applicant was 17 years old at the time of the offences and 18 at the time of sentence. He had no prior criminal or traffic…

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 Cco

Details

AGLC: R v Cco [2020] QCA 231
Case: [2020] QCA 231
Decision Date: 27 October 2020

CaseChat Overview and Summary

The case of R v Cco involved an appeal against the sentence imposed on the applicant child who had pleaded guilty to dangerous operation of a motor vehicle causing grievous bodily harm. The incident in question involved the applicant child driving a utility in a vacant lot, performing reckless manoeuvres while the complainant and another child were in the back tray of the utility. The vehicle subsequently rolled over, briefly resting atop the complainant's back. The sentencing judge imposed a restorative justice order under section 192B of the Youth Justice Act 1992 (Qld) and a probation order under section 193 of the same act. The applicant child sought leave to appeal the sentence, arguing that the imposition of both orders was unreasonable or plainly unjust, although the precise nature of the error was not clear.

The court was tasked with determining whether the imposition of both a restorative justice order and a probation order was collectively so unreasonable or plainly unjust as to compel a conclusion that the sentencing judge must have erred. This required an assessment of whether the sentence was manifestly excessive or inadequate, and whether the sentencing judge's reasons for imposing both orders were clear and justifiable. The court had to consider the principles of sentencing for children, the objectives of the Youth Justice Act, and the specific circumstances of the offence.

The court found that the imposition of both orders was indeed collectively unreasonable or plainly unjust. The sentencing judge's reasons for imposing both orders were not clear, and it appeared that the judge had not adequately considered the overlap and potential cumulative effect of the orders. The court concluded that the applicant child was entitled to relief, and granted the application for leave to appeal. The appeal was allowed, and the sentence was varied to set aside the probation order, leaving only the restorative justice order in place.

Orders

Orders of the court

1. Application for leave to appeal sentence granted.

2. Appeal allowed.

3. The sentence imposed below is varied only to the extent that the order releasing the offender under the supervision of the Chief Executive for nine months (the probation order) is set aside.

Background

Background to the litigation

Full text does not contain this section.

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 CCO [2020] QCA 231
PARTIES:	R v CCO (applicant)
FILE NO/S:	CA No 104 of 2020 DC No 222 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Rockhampton – Date of Sentence: 7 May 2020 (Burnett DCJ)
DELIVERED ON:	27 October 2020
DELIVERED AT:	Brisbane
HEARING DATE:	19 August 2020
JUDGES:	Philippides and McMurdo JJA and Henry J
ORDERS:	1. Application for leave to appeal sentence granted. 2. Appeal allowed. 3. The sentence imposed below is varied only to the extent that the order releasing the offender under the supervision of the Chief Executive for nine months (the probation order) is set aside.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant child pleaded guilty to dangerous operation of a motor vehicle causing grievous bodily harm contrary to s 328A(4)(a) Criminal Code (Qld) – where the applicant child drove a utility in a vacant lot, performing reckless fishtail manoeuvres, while the complainant and another child were in the back tray of the utility – where the utility rolled over and briefly rested atop the complainant’s back – where the sentencing Judge imposed a restorative justice order under s 192B Youth Justice Act 1992 (Qld) and a probation order under s 193 Youth Justice Act 1992 (Qld) – where the sentencing Judge’s reasons for imposing both orders are not clear – whether the imposition of both orders was collectively so unreasonable or plainly unjust to compel a conclusion that his Honour must have erred, notwithstanding that the nature of the error is not discoverable Youth Justice Act 1992 (Qld), s 33, s 35, s 162, s 163, s 177, s 178C, s 192A, s 194, s 192B, s 193 House v The King (1936) 55 CLR 499; [1936] HCA 40, applied R v Patrick (a pseudonym); R v Patrick (a pseudonym); Ex parte Attorney-General (Qld)[2020] QCA 51, applied R v PBD[2019] QCA 59, considered
COUNSEL:	C Smith for the applicant D Nardone for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent