R v Cunningham

[2014] QCA 88

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cunningham [2014] QCA 88

PARTIES:

R
v
CUNNINGHAM, Luke
(applicant/appellant)

FILE NO/S:

CA No 295 of 2013
DC No 256 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Brisbane

DELIVERED ON:

2 May 2014

DELIVERED AT:

Brisbane

HEARING DATE:

28 February 2014

JUDGES:

Holmes and Gotterson JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application for leave to appeal against sentence granted.

2.   Appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where juvenile applicant pleaded guilty to two counts of stealing, one count of receiving tainted property, one count of burglary and stealing, one count of unlawfully using a motor vehicle and two counts of attempted armed robbery – where juvenile applicant sentenced to two years detention, with convictions recorded – whether the primary judge erred in recording a conviction against the juvenile applicant

Criminal Code 1899 (Qld), s 668E(3)
Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld), s 3
Youth Justice Act 1992 (Qld), s 183, s 184(1), s 299A

R v B[1995] QCA 231, followed
R v BCN[2013] QCA 226, considered
R v Brown ; ex parte Attorney-General [1994] 2 Qd R 182; [1993] QCA 271, cited
R v L[2000] QCA 448, considered
R v WAJ[2010] QCA 87, followed

COUNSEL:

F Richards for the applicant/appellant
P McCarthy for the respondent

SOLICITORS:

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

1. HOLMES JA:  I agree with the reasons of Daubney J and the orders he proposes.

1. GOTTERSON JA:  I agree with the orders proposed by Daubney J and with the reasons given by his Honour.

1. DAUBNEY J:  On 12 September 2013, the applicant pleaded guilty in the Children’s Court to the following offences:

-      Count 1 – Stealing

-      Count 2 – Receiving Tainted Property

-      Count 3 – Burglary and stealing

-      Count 4 – Unlawfully using a motor vehicle

-      Count 5 – Stealing

-      Count 6 – Attempted armed robbery

-      Count 7 – Attempted armed robbery

1. The applicant was sentenced on 5 November 2013. On each of Counts 1, 2, 3, 4 and 5, the applicant was sentenced to three months’ detention, to be served concurrently. On each of Counts 6 and 7, it was ordered that he be detained for two years, to be served concurrently. A declaration under s 227(1) of the Youth Justice Act 1992 (“YJA”) was made for his release after serving 70 per cent of the period in detention.  The learned sentencing judge ordered that convictions be recorded.

1. The learned sentencing judge also dealt with a breach of probation and several summary offences to which the applicant had pleaded guilty.  The breach was found proved, but no…