R v DAZ - [2012] QCA 31

SUPREME COURT OF QUEENSLAND

CITATION:

R v DAZ [2012] QCA 31

PARTIES:

R
v
DAZ
(applicant)

FILE NO/S:

CA No 3 of 2012
DC No 30 of 2011
DC No 56 of 2011
DC No 58 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Cairns

DELIVERED ON:

2 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2012

JUDGES:

Margaret McMurdo P and White JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Grant the application for leave to appeal.

2. Allow the appeal.

3. Set aside the orders imposed below and instead order the following.

4. Upon the applicant’s willingness to comply with this order being communicated to the Deputy Registrar (Appeals) by her lawyer, on each count on Indictment No 56 of 2011 and on count 1 on Indictment No 58 of 2011, the applicant be sentenced to 12 months detention with an order that the sentence of detention be suspended immediately and the applicant be released from detention immediately subject to a conditional release order in the terms set out in s 221 of the Youth Justice Act 1992 (Qld).

5. On each remaining count the applicant be placed on probation for a period of two years subject to the requirements of s 193 of the Youth Justice Act 1992 (Qld).

6. Convictions are not recorded.

7. The Court order sheet attached to indictment 30/11 is amended by deleting “6 months” and substituting “3 months”.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to entering premises and stealing; entering premises and attempted stealing; burglary, while armed, by breaking, in the night, with violence, in company, with property damage; attempted robbery, while armed, in company; robbery, in company, with personal violence; and fraud – where applicant was sentenced to 18 months detention for each of the burglary, the attempted armed robbery, and the robbery with personal violence; and three months detention for each of the entering premises and stealing, entering premises and attempted stealing, and fraud – where the applicant was therefore required to serve 50 per cent of an 18 month sentence under the Youth Justice Act 1992 (Qld), s 227(2) – where no conviction was recorded – where the applicant contended that the learned sentencing judge erred in failing to make a conditional release order pursuant to the Youth Justice Act 1992 (Qld), s 220 – where the applicant contended that the learned sentencing judge had given insufficient consideration to other factors including the applicant’s co-operation – where the applicant had refrained from the commission of further serious offences for 11 months – where the applicant came from “an horrific background” – whether the sentence was manifestly excessive in the circumstances

Criminal Code 1899 (Qld), s 419
Juvenile Justice Act 1992 (Qld)
Penalties and Sentences Act 1992…

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 DAZ

Details

AGLC: R v DAZ [2012] QCA 31
Case: [2012] QCA 31
Decision Date: 2 March 2012

CaseChat Overview and Summary

The applicant, DAZ, appealed against his sentence in a case where he had pleaded guilty to multiple offences including entering premises and stealing, burglary, attempted armed robbery, robbery, and fraud. The trial court imposed a sentence of 18 months detention for each of the burglary, attempted armed robbery, and robbery with personal violence, and three months detention for each of the entering premises and stealing, entering premises and attempted stealing, and fraud. The applicant argued that the sentence was manifestly excessive and that the sentencing judge had not adequately considered factors such as his background and co-operation. The applicant also contended that the court should have made a conditional release order under the Youth Justice Act 1992 (Qld), s 220.

The court identified the key issue as whether the sentence was manifestly excessive, taking into account the relevant statutory provisions and the circumstances of the applicant. The court considered the principles of sentencing under the Youth Justice Act 1992 (Qld) and the factors that should be weighed in determining an appropriate sentence. The court noted the applicant's background and his efforts to refrain from further offending. The court concluded that the sentence imposed was manifestly excessive given the applicant's background and the mitigating factors presented. The court found that the sentencing judge had not adequately considered the relevant factors and that a conditional release order should have been made.

The appeal was allowed, and the sentence was set aside. The applicant was ordered to be sentenced to 12 months detention with an immediate suspension of sentence and release, subject to a conditional release order, on certain counts. For the remaining counts, the applicant was to be placed on probation for two years. Convictions were not to be recorded. The court also amended the order sheet to correct a clerical error.

Orders

Orders of the court

1. Grant the application for leave to appeal.

2. Allow the appeal.

3. Set aside the orders imposed below and instead order the following.

4. Upon the applicant’s willingness to comply with this order being communicated to the Deputy Registrar (Appeals) by her lawyer, on each count on Indictment No 56 of 2011 and on count 1 on Indictment No 58 of 2011, the applicant be sentenced to 12 months detention with an order that the sentence of detention be suspended immediately and the applicant be released from detention immediately subject to a conditional release order in the terms set out in s 221 of the Youth Justice Act 1992 (Qld).

5. On each remaining count the applicant be placed on probation for a period of two years subject to the requirements of s 193 of the Youth Justice Act 1992 (Qld).

6. Convictions are not recorded.

7. The Court order sheet attached to indictment 30/11 is amended by deleting “6 months” and substituting “3 months”.

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 DAZ [2012] QCA 31
PARTIES:	R v DAZ (applicant)
FILE NO/S:	CA No 3 of 2012 DC No 30 of 2011 DC No 56 of 2011 DC No 58 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Cairns
DELIVERED ON:	2 March 2012
DELIVERED AT:	Brisbane
HEARING DATE:	7 February 2012
JUDGES:	Margaret McMurdo P and White JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant the application for leave to appeal. 2. Allow the appeal. 3. Set aside the orders imposed below and instead order the following. 4. Upon the applicant’s willingness to comply with this order being communicated to the Deputy Registrar (Appeals) by her lawyer, on each count on Indictment No 56 of 2011 and on count 1 on Indictment No 58 of 2011, the applicant be sentenced to 12 months detention with an order that the sentence of detention be suspended immediately and the applicant be released from detention immediately subject to a conditional release order in the terms set out in s 221 of the Youth Justice Act 1992 (Qld). *5. On each remaining count the applicant be placed on probation for a period of two years subject to the requirements of s 193 of the Youth Justice Act* 1992 (Qld). 6. Convictions are not recorded. 7. The Court order sheet attached to indictment 30/11 is amended by deleting “6 months” and substituting “3 months”.**
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to entering premises and stealing; entering premises and attempted stealing; burglary, while armed, by breaking, in the night, with violence, in company, with property damage; attempted robbery, while armed, in company; robbery, in company, with personal violence; and fraud – where applicant was sentenced to 18 months detention for each of the burglary, the attempted armed robbery, and the robbery with personal violence; and three months detention for each of the entering premises and stealing, entering premises and attempted stealing, and fraud – where the applicant was therefore required to serve 50 per cent of an 18 month sentence under the Youth Justice Act 1992 (Qld), s 227(2) – where no conviction was recorded – where the applicant contended that the learned sentencing judge erred in failing to make a conditional release order pursuant to the Youth Justice Act 1992 (Qld), s 220 – where the applicant contended that the learned sentencing judge had given insufficient consideration to other factors including the applicant’s co-operation – where the applicant had refrained from the commission of further serious offences for 11 months – where the applicant came from “an horrific background” – whether the sentence was manifestly excessive in the circumstances Criminal Code 1899 (Qld), s 419 Juvenile Justice Act 1992 (Qld) Penalties and Sentences Act 1992…