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R v Dance

R v Dance

Case [2009] QCA 371 25 November 2009

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Dance [2009] QCA 371

PARTIES:

R
v
DANCE, Anthony William
(applicant/appellant)

FILE NO/S:

CA No 237 of 2009
DC No 2957 of 2008
DC No 748 of 2009
DC No 2215 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Orders delivered ex tempore on 25 November 2009
Reasons delivered on 4 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

25 November 2009

JUDGES:

McMurdo P, and Atkinson and A Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore 26 November 2009

1.The application for leave to appeal against sentence is allowed.

2.The appeal is allowed only to the extent of replacing the parole release date of 16 January 2010 with a parole release date of today.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – OTHER MATTERS – where applicant pleaded guilty to 19 property offences on three indictments and three summary offences – where applicant sentenced to 18 months imprisonment in respect of the 19 indictable offences – where applicant sentenced to one month imprisonment in respect of each of the summary offences – where the periods of imprisonment were ordered to be served concurrently – where sentencing Judge ordered that the applicant be released on parole on 16 January 2010 – where the applicant was 17 and 18 years old at the time of offending – whether sentencing Judge put adequate weight on the sentencing principle that imprisonment should be imposed as a last resort – whether sentencing Judge put adequate weight on the youth of the offender in fashioning an appropriate sentence – whether sentence was manifestly excessive

Criminal Code 1899 (Qld), s 651
Penalties and Sentences Act 1992 (Qld), s 9 (1), 9(2), 9(3)

Jones v Attorney-General of Queensland[1999] QCA 259, distinguished
Kroon v Hutchins (1997) 25 MVR 571; [1997] QCA 200, distinguished
R v Broadbridge [1994] QCA 278, distinguished
R v Chatters [2008] QCA 233, distinguished
R v Cummins [2004] QCA 350, distinguished
R v Graham [2000] QCA 181, distinguished
R v Hardgrave [1996] QCA 5, distinguished
R v Hillier [2007] QCA 279, distinguished
R v Hitchens [1998] QCA 314, distinguished
R v Howie [2009] QCA 50, distinguished
R v Kinersen-Smith & Connor; ex parte A-G (Qld) [2009] QCA 153, cited
R v McDowall [2005] QCA 260, distinguished
R v Pahoff [2002] QCA 525, considered
R v Ross [2000] QCA 49, considered
R v Smith [2000] QCA 127, considered
R v Taylor[2007] QCA 214, considered

COUNSEL:

K L Anderson for the applicant
M B Lehane for the respondent

SOLICITORS:

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

McMURDO P: I agree with Atkinson J's reasons for making the following orders in this matter on 26 November 2009:

1.…

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 Dance

Details

AGLC: R v Dance [2009] QCA 371
Case: [2009] QCA 371
Decision Date: 25 November 2009

CaseChat Overview and Summary

The matter of R v Dance was heard in the appellate court, with the applicant appealing against their sentence. The applicant had pleaded guilty to 19 property offences across three indictments and three summary offences. The sentencing Judge imposed a term of 18 months imprisonment for the indictable offences, with an additional one month imprisonment for each summary offence, to be served concurrently. The Judge also set a parole release date of 16 January 2010. The applicant, aged 17 and 18 at the time of the offences, challenged the adequacy of the Judge's consideration of the principle that imprisonment should be a last resort, and the weight given to their youth in determining the sentence. The applicant further contended that the sentence was manifestly excessive.

The legal issues before the court included whether the sentencing Judge adequately considered the principle that imprisonment should be a last resort, the weight given to the youth of the offender, and whether the sentence was manifestly excessive. The court had to evaluate if the sentence was appropriate in light of the principles of sentencing and the characteristics of the offender.

The court found that the sentencing Judge did not give adequate weight to the principle that imprisonment should be imposed as a last resort. It was also determined that the youth of the offender was not sufficiently considered in determining the sentence. The court concluded that the sentence was manifestly excessive. Consequently, the appeal was allowed to the extent of altering the parole release date from 16 January 2010 to the date of the appeal hearing. This adjustment ensured that the applicant was released on parole immediately upon the appeal's determination.

Orders

Orders of the court

Delivered ex tempore 26 November 2009

1.The application for leave to appeal against sentence is allowed.

2.The appeal is allowed only to the extent of replacing the parole release date of 16 January 2010 with a parole release date of today.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Dance [2009] QCA 371

Most Recent Citation

R v Burton [2010] QCA 376

Cases citing this decision · 12 of 12 shown

R v TC
[2025] QChC 8 Para 5

…His Honour then went on to consider the adult sentences of R v Dance [2009] QCA 371, R v Howie [2009] QCA 50, R v Ross [2000] QCA 49, R v Cummins [2004] QCA 350. His Honour then noted: “As I say whilst these laws are called adult crime adult time it may well be that they can and should result in sentences higher…
Commissioner of the Queensland Police Service v Toby
[2025] QDC 22 Para 7

…The parties have referred the court to the comparative cases of R v Dance [2009] QCA 371, R v Hazelgrove [2013] QCA 243, R v Karbanowicz [2003] QCA 543, and R v Bryant (2007) 173 A Crim R 88 citing R v MJ Taylor [2007] QCA 214.…
Kelly and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2025] ARTA 327 Para 31

…on probation for a period of three years. I was also referred to a decision of the Court of Appeal in the Queen against Dance [2009] QCA 371. There were 16 indictments presented – rather, there were three indictments presented against the defendant in Dance: one indictment with 16 counts, one indictment with a si…
Jik v Queensland Police Service
[2022] QDC 61 Para 12

…The second decision to which the Prosecutor referred the learned Magistrate in the court below was R v Dance [2009] QCA 371. That was a matter that involved 19 indictable property offences as well as the offence of dangerous operation of a motor vehicle. The Applicant or the offender in Dance was 19 years of age,…
Priestley v Commissioner of Police
[2020] QDC 60 Para 2

…ttention to the fact that the Appellant had served 83 days in pre-sentence custody. In reliance of the decision of the court of appeal in R v Dance [2009] QCA 371, it was submitted that in respect of the most serious offence a term of imprisonment of 12 months would be justified.…
Senesie Bull v The Commissioner of Police
[2020] QDC 35 Para 1

…] and Doyle v The Commissioner of Police[11] . All of these cases were for sentences imposed when the offender pleaded guilty. [7] [2000] QCA 49. [8] [2009] QCA 371. [9] [2003] QCA 217. [10] [2010] QDC 388. [11] [2015] QDC 155.…
King v Queensland Police Service
[2019] QDC 131

…ve Legislation Justices Act 1886 (Qld) s 222 Penalties and Sentences Act 1992 (Qld) s 9 Cases Barbaro v The Queen (2014) 253 CLR 58 R v Dance [2009] QCA 371 House v The King (1936) 55 CLR 499 R v Howie [2009] QCA 50 R v Jackson [2011] QCA 103 R v Lawley [2007] QCA 243 R v McDowall [2005] QCA 260 R v MCT [2018] QC…
Russell v Commissioner of Police
[2018] QDC 183 Para 1

…He was sentenced to 18 months imprisonment in respect of the indictable offences and a parole release date was set, after he served four months. [15][2009] QCA 371.…
Vaevae v Queensland Police Service
[2018] QDC 66

…ng (1936) 55 CLR 499 Kentwell v R (2014) 252 CLR 60 Norbis v Norbis (1986) 161 CLR 513 R v Broadbridge [1994] QCA 278 R v Dance [2009] QCA 371 Teelow v Commissioner of Police [2009] QCA 84 Warren v Coombes (1979) 142 CLR 531 White v Commissioner of Police [2014] QCA 121 COUNSEL: J Trevino for the Appellant E Coke…
Szucs v Queensland Police Service
[2015] QDC 190 Para 3

…er in determining the appropriate sentence. They were R v Mason [1998] QCA 177, R v Karbanowicz [2003] QCA 543, R v Cummins [2004] QCA 350, R v Dance [2009] QCA 371, R v Paton [2011] QCA 34 and R v Walsh [2014] QCA 209. The case of R v Walsh discusses a number cases.…
The Queen v Marshall
[2013] QDC 127 Para 2

…In R v Dance [2009] QCA 371 at [56] the Court of Appeal allowed an appeal on the basis that this section was not referred to at the sentence.…
R v Burton
[2010] QCA 376 Para 23

…[23][2009] QCA 371 at [23].…

View all 12 citing cases →

Cases cited in this decision · 17 of 17 shown

R v Kinersen-Smith & Connor; ex parte
[2009] QCA 153 Para 1

…age of the offender is relevant even with youthful offenders who have committed violent offences. In R v Kinersen-Smith & Connor ; ex parte A-G (Qld) [2009] QCA 153 at [26] Holmes JA referred to the emphasis the court places when sentencing on the community interest in the rehabilitation of young offenders. Her H…
R v Howie
[2009] QCA 50 Para 1

…R v Howie [2009] QCA 50: Howie was either 22 or 23 years of age when he committed the offences. His criminal history included a few relatively minor offences and a stealing and fraud offence for which he was given probation. Over a 14 month period he stole a variety of items from his girlfriend and family member…
R v. Chatters
[2008] QCA 233 Para 1

…R v Chatters [2008] QCA 233: The applicant had pleaded guilty to one count of unlawful use of a motor vehicle, one count of dangerous operation of a motor vehicle and one summary offence of obstructing police. He was sentenced to 18 months imprisonment in respect of each indictable offence and six months imprison…
R v. Hillier
[2007] QCA 279 Para 1

…R v Hillier [2007] QCA 279: The applicant pleaded guilty by way of ex officio indictment to an offence of dangerous operation of a motor vehicle and was sentenced to 18 months imprisonment to be served cumulatively with a sentence he was already serving. The dangerous operation of a motor vehicle involved a polic…
R v Taylor
[2007] QCA 214 Para 1

…R v Taylor [2007] QCA 214: Taylor was 22 years of age when sentenced and 20 at the time of offending, with a relatively minor criminal history. He committed 22 dishonesty offences over two short time frames. The total value of property loss involved in all the offences was $9,119.00. The offences involved breakin…
R v McDowall
[2005] QCA 260 Para 1

…R v McDowall [2005] QCA 260: The applicant had pleaded guilty to seven property offences and was sentenced to nine months imprisonment to be suspended after serving one month. The total value of the loss was approximately $3,500. The applicant at 25 at the time of sentence was older than the present applicant and…
R v Cummins
[2004] QCA 350 Para 1

…R v Cummins [2004] QCA 350: The applicant pleaded guilty to 14 property offences and one offence of common assault and was sentenced to serve three months imprisonment followed by two years probation. The applicant’s offending occurred over a period of seven months and resulted in a total financial loss of $460.…
R v Pahoff
[2002] QCA 525 Para 1

…R v Pahoff [2002] QCA 525: The applicant pleaded guilty to one count of breaking and entering and stealing, one count of dangerous operation of a motor vehicle and one count of obstructing police. He was sentenced to 18 months probation and ordered to perform 200 hours of community service. He was also ordered to…
The Queen v Jason Neil Graham
[2000] QCA 181 Para 1

…R v Graham [2000] QCA 181: Graham was 20 at the time of sentencing for three counts of break, enter and steal, one count of entering with intent, one count of unlawful use and breach of probation. He had an extensive criminal history for offences largely of dishonesty. He committed the offences while on probation…
R v Smith
[2000] QCA 127 Para 1

…R v Smith [2000] QCA 127: The applicant pleaded guilty to a total of 18 property offences. The offences occurred over a period of 11 months and some were committed whilst on bail. The applicant was sentenced to three months imprisonment and three years probation in respect of each offence. The applicant had a min…
R v Ross
[2000] QCA 49 Para 1

…R v Ross [2000] QCA 49: The applicant pleaded guilty to an ex officio indictment charging a total of 22 property offences and eight summary offences. The applicant was aged 17 and 18 at the time of the commission of the offences and 18 at the time of sentence. The total loss of the offending was $8,400. The appl…
Jones v Attorney-General of Queensland
[1999] QCA 259 Para 1

…Jones v Attorney-General of Queensland [1999] QCA 259: This was an appeal against sentence by the Attorney General. The respondent pleaded guilty to one count of dangerous operation of a motor vehicle and was sentenced to one year’s imprisonment wholly suspended for three years and disqualified from holding a dri…
R v Hitchens
[1998] QCA 314 Para 1

…R v Hitchens [1998] QCA 314: The applicant had pleaded guilty to an offence of dangerous operation of a motor vehicle. The police had seen the applicant doing “burnouts” at a service station and a chase ensured. It was 3:52pm and the chase went on for almost 50km and lasted approximately 25 minutes. In the course…
R v Hargrave
[1996] QCA 5 Para 1

…R v Hargrave [1996] QCA 5: Hargrave was convicted of unlawful use of a motor vehicle, house breaking and stealing. He was 18 years of age at the time of offending. He had previously been sentenced to a short period of imprisonment for breaching probation and community service orders. He acted as a look-out in r…
R v Broadbridge
[1994] QCA 278 Para 1

…R v Broadbridge [1994] QCA 278: Broadbridge was 18 years of age with an irrelevant criminal history. The dangerous driving involved driving his vehicle slightly towards a police officer at high speed in order to scare him. The police officer was trying to get Broadbridge to pull over. He also broke into a house a…
Kroon v Hutchins
[1997] QCA 200

…alties and Sentences Act 1992 (Qld), s 9 (1), 9(2), 9(3) Jones v Attorney-General of Queensland [1999] QCA 259, distinguished Kroon v Hutchins (1997) 25 MVR 571; [1997] QCA 200, distinguished R v Broadbridge [1994] QCA 278, distinguished R v Chatters [2008] QCA 233, distinguished R v Cummins [2004] QCA 350, distinguished…
[2007] QCA 47
[2007] QCA 47 Para 1

…to the emphasis the court places when sentencing on the community interest in the rehabilitation of young offenders. Her Honour quoted from R v Mules [2007] QCA 47 at [21]:…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
9, 9(2), 9(3) 4 mentions (from Para 1)

CITATION:	R v Dance [2009] QCA 371
PARTIES:	R v DANCE, Anthony William (applicant/appellant)
FILE NO/S:	CA No 237 of 2009 DC No 2957 of 2008 DC No 748 of 2009 DC No 2215 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	Orders delivered ex tempore on 25 November 2009 Reasons delivered on 4 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	25 November 2009
JUDGES:	McMurdo P, and Atkinson and A Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore 26 November 2009 1.The application for leave to appeal against sentence is allowed. 2.The appeal is allowed only to the extent of replacing the parole release date of 16 January 2010 with a parole release date of today.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – OTHER MATTERS – where applicant pleaded guilty to 19 property offences on three indictments and three summary offences – where applicant sentenced to 18 months imprisonment in respect of the 19 indictable offences – where applicant sentenced to one month imprisonment in respect of each of the summary offences – where the periods of imprisonment were ordered to be served concurrently – where sentencing Judge ordered that the applicant be released on parole on 16 January 2010 – where the applicant was 17 and 18 years old at the time of offending – whether sentencing Judge put adequate weight on the sentencing principle that imprisonment should be imposed as a last resort – whether sentencing Judge put adequate weight on the youth of the offender in fashioning an appropriate sentence – whether sentence was manifestly excessive Criminal Code 1899 (Qld), s 651 Penalties and Sentences Act 1992 (Qld), s 9 (1), 9(2), 9(3) Jones v Attorney-General of Queensland[1999] QCA 259, distinguished Kroon v Hutchins (1997) 25 MVR 571; [1997] QCA 200, distinguished R v Broadbridge [1994] QCA 278, distinguished R v Chatters [2008] QCA 233, distinguished R v Cummins [2004] QCA 350, distinguished R v Graham [2000] QCA 181, distinguished R v Hardgrave [1996] QCA 5, distinguished R v Hillier [2007] QCA 279, distinguished R v Hitchens [1998] QCA 314, distinguished R v Howie [2009] QCA 50, distinguished R v Kinersen-Smith & Connor; ex parte A-G (Qld) [2009] QCA 153, cited R v McDowall [2005] QCA 260, distinguished R v Pahoff [2002] QCA 525, considered R v Ross [2000] QCA 49, considered R v Smith [2000] QCA 127, considered R v Taylor[2007] QCA 214, considered
COUNSEL:	K L Anderson for the applicant M B Lehane for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent