R v DBS - [2020] QCA 1

SUPREME COURT OF QUEENSLAND

CITATION:

R v DBS [2020] QCA 1

PARTIES:

R
v
DBS
(applicant)

FILE NO/S:

CA No 88 of 2019
DC No 996 of 2018
DC No 1772 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction & Sentence)

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction and Sentence: 10 August 2018 (Burnett DCJ)

DELIVERED ON:

29 January 2020

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2019

JUDGES:

Morrison and McMurdo JJA and Crow J

ORDERS:

1.   Extend the time to appeal to 4 April 2019.

2.   Dismiss the appeal against the conviction for the offence of robbery with actual violence.

3.   Vary the sentence imposed for that offence, from a term of two years’ imprisonment to a term of one year’s imprisonment, but otherwise make no change to the orders made on 10 August 2018.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – PURPOSE OF SENTENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENCES – GENERAL PRINCIPLES – where the applicant pleaded guilty to one charge of robbery in company with actual violence and 15 summary charges – where the applicant and another woman, Ms White, entered a store which bought and sold second-hand mobile phones –where the complainant stole two mobile phones from the store – where the complainant, a salesperson who worked at the store, was pushed during the robbery – where the complainant was unable to say whether the applicant or Ms White pushed her – where the applicant was sentenced to two years’ imprisonment for the offence of robbery, and various terms, the longest being 12 months, for the summary offences – where Ms White pleaded guilty to a less serious offence and was sentenced to two years’ probation – whether there were significant differences between the applicant’s and Ms White’s offending, criminal histories and circumstances – whether the disparity of outcomes violated the parity principle of sentencing – whether the sentence was manifestly excessive

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, applied

COUNSEL:

The applicant appeared on his own behalf
S J Bain for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: I have had the advantage of reading the draft reasons for judgment of McMurdo JA. I am able to gratefully adopt, with some exceptions, his Honour’s summary of the proceedings and the law. That enables me to state in short terms my own reasons for reaching a conclusion contrary to that of his Honour.
It is true to say that at the sentencing hearing the applicant’s counsel said that it was Ms White who had pushed the complainant. That was in a written submission based upon the applicant’s statement given pursuant to an undertaking under s 13A of the Penalties and Sentences Act 1992 (Qld). However, that statement did not conform with the agreed statement of facts upon which the applicant was sentenced. As to the issue of who…

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 DBS

Details

AGLC: R v DBS [2020] QCA 1
Case: [2020] QCA 1
Decision Date: 29 January 2020

CaseChat Overview and Summary

In the matter of R v DBS, the applicant appealed against a sentence imposed by the Magistrates’ Court of Victoria. The applicant had pleaded guilty to one charge of robbery in company with actual violence and 15 summary charges. The applicant and another woman, Ms White, entered a store which bought and sold second-hand mobile phones, and stole two mobile phones from the store. During the robbery, the complainant, a salesperson who worked at the store, was pushed, but it was not clear whether the applicant or Ms White had done so. The applicant was sentenced to two years’ imprisonment for the offence of robbery and various terms, the longest being 12 months, for the summary offences. Ms White pleaded guilty to a less serious offence and was sentenced to two years’ probation.

The court was required to determine whether there were significant differences between the applicant’s and Ms White’s offending, criminal histories and circumstances, and whether the disparity of outcomes violated the parity principle of sentencing. The court also had to consider whether the sentence was manifestly excessive. The applicant argued that the disparity in sentencing between herself and Ms White was unjust and violated the principle of parity. The applicant contended that she had played a lesser role in the robbery, and that Ms White had a more extensive criminal history.

The court found that there were significant differences between the applicant’s and Ms White’s offending, criminal histories and circumstances. The court noted that the applicant had played a lesser role in the robbery, and that it was not clear whether she had pushed the complainant. The court also found that the disparity in sentencing between the applicant and Ms White was unjust and violated the principle of parity. However, the court held that the sentence was not manifestly excessive, as the applicant’s offending was serious and warranted a term of imprisonment. The court varied the sentence imposed for the offence of robbery, from a term of two years’ imprisonment to a term of one year’s imprisonment.

The court extended the time to appeal to 4 April 2019, dismissed the appeal against the conviction for the offence of robbery with actual violence, and varied the sentence imposed for that offence, from a term of two years’ imprisonment to a term of one year’s imprisonment, but otherwise made no change to the orders made on 10 August 2018.

Orders

Orders of the court

1. Extend the time to appeal to 4 April 2019.

2. Dismiss the appeal against the conviction for the offence of robbery with actual violence.

3. Vary the sentence imposed for that offence, from a term of two years’ imprisonment to a term of one year’s imprisonment, but otherwise make no change to the orders made on 10 August 2018.

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 DBS [2020] QCA 1
PARTIES:	R v DBS (applicant)
FILE NO/S:	CA No 88 of 2019 DC No 996 of 2018 DC No 1772 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction & Sentence)
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction and Sentence: 10 August 2018 (Burnett DCJ)
DELIVERED ON:	29 January 2020
DELIVERED AT:	Brisbane
HEARING DATE:	27 September 2019
JUDGES:	Morrison and McMurdo JJA and Crow J
ORDERS:	1. Extend the time to appeal to 4 April 2019. 2. Dismiss the appeal against the conviction for the offence of robbery with actual violence. 3. Vary the sentence imposed for that offence, from a term of two years’ imprisonment to a term of one year’s imprisonment, but otherwise make no change to the orders made on 10 August 2018.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – PURPOSE OF SENTENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENCES – GENERAL PRINCIPLES – where the applicant pleaded guilty to one charge of robbery in company with actual violence and 15 summary charges – where the applicant and another woman, Ms White, entered a store which bought and sold second-hand mobile phones –where the complainant stole two mobile phones from the store – where the complainant, a salesperson who worked at the store, was pushed during the robbery – where the complainant was unable to say whether the applicant or Ms White pushed her – where the applicant was sentenced to two years’ imprisonment for the offence of robbery, and various terms, the longest being 12 months, for the summary offences – where Ms White pleaded guilty to a less serious offence and was sentenced to two years’ probation – whether there were significant differences between the applicant’s and Ms White’s offending, criminal histories and circumstances – whether the disparity of outcomes violated the parity principle of sentencing – whether the sentence was manifestly excessive Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, applied
COUNSEL:	The applicant appeared on his own behalf S J Bain for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent