R v Cutter - [2000] QCA 52

SUPREME COURT OF QUEENSLAND

CITATION: R v Cutter [2000] QCA 52

PARTIES: R
v
CUTTER, Eric Daniel
(applicant)

FILE NO/S: CA No 300 of 1999
DC No 36 of 1999

DIVISION: Court of Appeal

PROCEEDING: Application for leave to appeal against sentence

ORIGINATING COURT:
District Court at Gympie

DELIVERED ON: 3 March 2000

DELIVERED AT: Brisbane

HEARING DATE: 22 February 2000

JUDGES: Davies JA, Thomas JA, Wilson J
Joint reasons for judgment of Thomas JA and Wilson J; separate reasons of Davies JA dissenting

ORDER: Application for leave to appeal against sentence refused

CATCHWORDS:
CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – OFFENCE COMMITTED WHILE ON BAIL OR PROBATION AND EFFECT OF BREACH OF PROBATION

CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PARITY – CO-OFFENDERS – GENERAL PRINCIPLES – 17 year old offender – serious offence – custodial term – parity with co-offenders

COUNSEL: Mrs K McGinness for the applicant
Mr M J Byrne QC for the respondent

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

DAVIES JA: I have had the advantage of reading the reasons for judgment of Thomas JA and Wilson J. Their Honours have set out at some length the facts relevant to this appeal and the argument of counsel for the applicant. Except in one respect I shall not add to what their Honours have said in this respect.

With great respect I disagree with their Honours’ conclusion. In my opinion the sentence imposed on the applicant was manifestly excessive.

There are two reasons why, in my view, that is so. The first is that it fails sufficiently to distinguish between the seriousness of the totality of the applicant's conduct and that of the other offenders (apart from Lindsay Horton) whose offences and sentences are referred to by their Honours. The second is his extreme youth, when compared to any of the other offenders, and a lack of any parental guidance combined with the fact that other offenders in the first and most serious of his groups of offences included his father, his uncle and his older brother.

It is important to emphasize that all of the other offenders were involved in two other groups of offences on the night of 29 March 1999, each of them more serious than the one to which the applicant was a party. The one to which the applicant was a party is described in the reasons of Thomas JA and Wilson J at [21]. Unsurprisingly, it seems as if the applicant's father was the leader of this enterprise and it was he who made the threat to Bryant, referred to in this paragraph. It is necessary to make some reference to the other offences committed by the other offenders that night because it is only by seeing the seriousness of those…

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 Cutter

Details

AGLC: R v Cutter [2000] QCA 52
Case: [2000] QCA 52
Decision Date: 3 March 2000

CaseChat Overview and Summary

The case of R v Cutter involved the appellant, a 17-year-old offender, who was convicted of a serious crime. The appellant was on probation at the time of committing the offence. The dispute centred around the appropriate sentence to be imposed, considering the breach of probation and the need for parity with co-offenders involved in the same crime. The matter was heard in the court of appeal, where the appellant sought leave to appeal against the sentence imposed by the lower court.

The court was tasked with determining the factors to be considered when sentencing a young offender who committed a serious crime while on probation. The appeal focused on whether the sentence was commensurate with the gravity of the offence and whether it was fair in comparison to the sentences given to co-offenders. The court had to balance the need for deterrence and retribution against the rehabilitative needs of a young offender.

In its decision, the court examined the nature of the offence, the appellant’s age, and the breach of probation conditions. It also considered the sentences handed down to co-offenders to ensure parity. The court concluded that the lower court had appropriately balanced these factors and found no basis for a different outcome. The court held that the sentence imposed was proportionate to the crime and that the appellant had received a fair sentence relative to his co-offenders.

The court refused the application for leave to appeal against the sentence. The appellant's argument that the sentence was disproportionate and did not adequately consider his age and the breach of probation was not deemed sufficient to warrant an appeal. The decision affirmed the sentence imposed by the lower court.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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 Cutter [2000] QCA 52
PARTIES:	R v CUTTER, Eric Daniel (applicant)
FILE NO/S:	CA No 300 of 1999 DC No 36 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave to appeal against sentence
ORIGINATING COURT:	District Court at Gympie
DELIVERED ON:	3 March 2000
DELIVERED AT:	Brisbane
HEARING DATE:	22 February 2000
JUDGES:	Davies JA, Thomas JA, Wilson J Joint reasons for judgment of Thomas JA and Wilson J; separate reasons of Davies JA dissenting
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – OFFENCE COMMITTED WHILE ON BAIL OR PROBATION AND EFFECT OF BREACH OF PROBATION CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PARITY – CO-OFFENDERS – GENERAL PRINCIPLES – 17 year old offender – serious offence – custodial term – parity with co-offenders
COUNSEL:	Mrs K McGinness for the applicant Mr M J Byrne QC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent