R v CCS - [2021] QCA 231

SUPREME COURT OF QUEENSLAND

CITATION:

R v CCS [2021] QCA 231

PARTIES:

R
v
CCS
(applicant)

FILE NO/S:

CA No 163 of 2021
DC No 62 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Southport – Date of Sentence: 28 June 2021 (Jones DCJ)

DELIVERED ON:

Date of Orders: 12 October 2021
Date of Publication of Reasons: 28 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

12 October 2021

JUDGES:

Sofronoff P and Davis and Williams JJ

ORDERS:

Date of Orders: 12 October 2021

1.   The application for leave to appeal against sentence be granted.

2.   The appeal be allowed.

3.   The sentence for count 1 be set aside to the extent that a conviction was recorded and substitute an order that no conviction be recorded.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of armed robbery in company with personal violence, two counts of armed robbery in company and one count of a threat to kill – where the applicant was sentenced to six months detention with immediate release on a conditional release order for a period of one month in respect of count one and a conviction was recorded – where the applicant was sentenced to two years’ probation and no convictions were recorded in respect of counts two to four – where the applicant was 15 years and eight months at the time of the offences and was 17 years old at the time of the sentence – where the applicant has a history of committing offences – where a pre-sentence report was prepared by the Department of Youth Justice for the purposes of the sentencing hearing and a representative of the Department made submissions at the sentencing hearing – where the applicant submits that the recording of a conviction in respect of count one rendered the sentence manifestly excessive – where the Youth Justice Act 1992 (Qld) requires the court to consider the circumstances of the offender when determining whether to record a conviction – whether it was appropriate to record a conviction against the applicant in respect of count one

Youth Justice Act1992 (Qld), s 183, s 184, s 208

R v BCN[2013] QCA 226, cited
R v Cunningham [2014] 2 Qd R 285; [2014] QCA 88, considered
R v D[2003] QCA 32, considered
R v DBU[2021] QCA 51, considered
R v FAY[2020] QCA 154, considered
R v HBV[2019] QCA 21, considered
R v MBQ; Ex parte Attorney-General (Qld)[2012] QCA 202, cited
R v PBE[2019] QCA 185, considered
R v SCU[2017] QCA 198, considered
R v TAO[2020] QCA 4, considered
R v V[2003] QCA 101, considered

COUNSEL:

C Smith for the applicant
A J Walklate for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

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 CCS

Details

AGLC: R v CCS [2021] QCA 231
Case: [2021] QCA 231
Decision Date: 28 October 2021

CaseChat Overview and Summary

The case of R v CCS involves the applicant who had pleaded guilty to a series of offences including armed robbery in company with personal violence, two counts of armed robbery in company and a threat to kill. The applicant was sentenced to six months detention with immediate release on a conditional release order for a period of one month in respect of the first count, with a conviction recorded. For counts two to four, the applicant was sentenced to two years’ probation with no convictions recorded. The applicant was 15 years and eight months at the time of the offences and 17 years old at the time of sentencing. The applicant, who has a history of committing offences, challenged the sentence on the ground that the recording of a conviction for count one rendered the sentence manifestly excessive.

The central legal issue for the court was whether it was appropriate to record a conviction against the applicant in respect of the first count, given the statutory framework under the Youth Justice Act 1992 (Qld) that requires consideration of the offender's circumstances when determining whether to record a conviction. The applicant argued that the recording of a conviction in respect of count one rendered the sentence manifestly excessive, as it could have long-term detrimental effects on the applicant's life despite the relatively minor nature of the offence. The court had to weigh the statutory obligations and the applicant's circumstances against the principle of proportionality in sentencing.

In deciding the matter, the court found that the recording of a conviction for count one was inappropriate given the overall context of the applicant's age, history of offending, and the nature of the offence. The court acknowledged the statutory requirement to consider the offender's circumstances but held that the recording of a conviction for the first count was not commensurate with the overall sentence and the nature of the offence. The court concluded that the sentence was manifestly excessive in this respect and allowed the appeal. The court set aside the sentence for count one to the extent that a conviction was recorded and ordered that no conviction be recorded.

The final orders of the court were to grant the application for leave to appeal against the sentence, allow the appeal, and set aside the sentence for count one to the extent that a conviction was recorded, substituting an order that no conviction be recorded.

Orders

Orders of the court

Date of Orders: 12 October 2021

1. The application for leave to appeal against sentence be granted.

2. The appeal be allowed.

3. The sentence for count 1 be set aside to the extent that a conviction was recorded and substitute an order that no conviction be recorded.

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

Full text does not contain this section.

CITATION:	R v CCS [2021] QCA 231
PARTIES:	R v CCS (applicant)
FILE NO/S:	CA No 163 of 2021 DC No 62 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Southport – Date of Sentence: 28 June 2021 (Jones DCJ)
DELIVERED ON:	Date of Orders: 12 October 2021 Date of Publication of Reasons: 28 October 2021
DELIVERED AT:	Brisbane
HEARING DATE:	12 October 2021
JUDGES:	Sofronoff P and Davis and Williams JJ
ORDERS:	Date of Orders: 12 October 2021 1. The application for leave to appeal against sentence be granted. 2. The appeal be allowed. 3. The sentence for count 1 be set aside to the extent that a conviction was recorded and substitute an order that no conviction be recorded.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of armed robbery in company with personal violence, two counts of armed robbery in company and one count of a threat to kill – where the applicant was sentenced to six months detention with immediate release on a conditional release order for a period of one month in respect of count one and a conviction was recorded – where the applicant was sentenced to two years’ probation and no convictions were recorded in respect of counts two to four – where the applicant was 15 years and eight months at the time of the offences and was 17 years old at the time of the sentence – where the applicant has a history of committing offences – where a pre-sentence report was prepared by the Department of Youth Justice for the purposes of the sentencing hearing and a representative of the Department made submissions at the sentencing hearing – where the applicant submits that the recording of a conviction in respect of count one rendered the sentence manifestly excessive – where the Youth Justice Act 1992 (Qld) requires the court to consider the circumstances of the offender when determining whether to record a conviction – whether it was appropriate to record a conviction against the applicant in respect of count one Youth Justice Act1992 (Qld), s 183, s 184, s 208 R v BCN[2013] QCA 226, cited R v Cunningham [2014] 2 Qd R 285; [2014] QCA 88, considered R v D[2003] QCA 32, considered R v DBU[2021] QCA 51, considered R v FAY[2020] QCA 154, considered R v HBV[2019] QCA 21, considered R v MBQ; Ex parte Attorney-General (Qld)[2012] QCA 202, cited R v PBE[2019] QCA 185, considered R v SCU[2017] QCA 198, considered R v TAO[2020] QCA 4, considered R v V[2003] QCA 101, considered
COUNSEL:	C Smith for the applicant A J Walklate for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant