R v D - [1999] QCA 231

IN THE COURT OF APPEAL [1999] QCA 231
SUPREME COURT OF QUEENSLAND
C.A. No. 452 of 1998
Brisbane
[R v D]
THE QUEEN
v
D

(Applicant) Appellant
Davies JA
Thomas JA
Wilson J

Judgment delivered 22 June 1999
Judgment of the Court
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.
APPEAL DISMISSED.
CATCHWORDS: CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - JUVENILE OFFENDERS - murder - offender sentenced to life imprisonment - whether offence was particularly heinous - whether offender’s subsequent conduct is relevant - whether offence was within worst category of offence of murder
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - murder - juvenile offender - offender sentenced to life imprisonment - whether offence was particularly heinous - whether offender’s subsequent conduct is relevant - whether offence was within worst category of offence of murder
Juvenile Justice Act 1992, ss 104, 108, 109, 121(3)
R v Carroll (CA No 221 of 1995, 26 July 1995), applied
R v Chivers [1993] 1 Qd R 432, considered
R v Gwilliams (CA No 414 of 1996, 31 October 1997), applied
Ibbs v R (1987) 163 CLR 447, considered
R v Twala (NSW CCA No 60187 of 1993, 4 November 1994),
considered

Veen v R [No 1] (1979) 143 CLR 458, considered
Veen v R [No 2] (1988) 164 CLR 465, considered
R v Wilson ex parte Attorney-General of Queensland (CA
No 85 of 1998, 18 September 1998), applied

Counsel: Mr A J Glynn SC with Mr M Green for the applicant/appellant
Mr D Bullock for the respondent
Solicitors: Legal Aid Queensland for the applicant/appellant
Director of Public Prosecutions (Queensland) for the
respondent
Hearing Date: 4 March 1999
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 22 June 1999

D was found guilty by a jury of having murdered a young female Japanese tourist Michiko Okuyama on or about 20 September 1997. He was sentenced to life imprisonment. He has applied for leave to appeal against the sentence on the ground that it is manifestly excessive.
At the time of the offence D was a child having been born on 7 January 1981. Accordingly he was sentenced under Part 5 of the Juvenile Justice Act 1992.[1] Because of the nature of the offence, s 121(3) of that Act applied. It provides:-
[1] See ss 104 and 108.
“In relation to a serious offence that is a life offence, the court may
order that the child be detained for -
(a) a period not more than 10 years; or
(b) a period up to and including the maximum of life, if -

(i) the offence involves the commission of violence against a person; and
(ii) the court considers the offence to be a particularly heinous
offence
having regard to all…

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 D

Details

AGLC: R v D [1999] QCA 231
Case: [1999] QCA 231
Decision Date: 22/06/1999

CaseChat Overview and Summary

The case of R v D involved the appellant, D, who was convicted of the murder of Michiko Okuyama and sentenced to life imprisonment. The Court of Appeal was tasked with determining whether the sentence was manifestly excessive. D, a juvenile at the time of the offence, was sentenced under the Juvenile Justice Act 1992, with particular consideration given to whether the offence was particularly heinous and within the worst category of murder. The victim, a 22-year-old Japanese tourist, was brutally attacked, resulting in her death from aspiration of blood. The court considered the heinousness of the offence and whether it warranted the maximum penalty of life imprisonment.

The court was required to decide whether the sentencing judge correctly classified the offence as particularly heinous and whether the sentence imposed was appropriate. The court also needed to assess if the offence fell within the worst category of murders, which would justify the maximum penalty. Additionally, the court had to consider D's conduct post-offence, his age, and potential mitigating factors in determining the sentence. The court examined the evidence to decide if the sentence was excessive, particularly in light of the heinous nature of the crime and D's lack of remorse.

The Court of Appeal found that the sentencing judge correctly classified the offence as particularly heinous due to the brutal and callous nature of the attack on an innocent stranger. The court held that the offence was within the worst category of murders, which justified the imposition of the maximum penalty. The court considered D's lack of remorse and his conduct after the offence, concluding that these factors did not warrant a reduction in the sentence. The court also noted that D's age and potential for rehabilitation were relevant but did not outweigh the gravity of the crime. Consequently, the court granted leave to appeal but dismissed the appeal, upholding the sentence of life imprisonment.

The final orders of the court were to grant leave to appeal against the sentence and to dismiss the appeal, thereby confirming the sentence of life imprisonment for D.

Orders