R v DCB - [2023] QCA 73

SUPREME COURT OF QUEENSLAND

CITATION:

R v DCB [2023] QCA 73

PARTIES:

R
v
DCB
(applicant)

FILE NO/S:

CA No 171 of 2021
DC No 135 of 2021
DC No 158 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Brisbane – Date of Sentence: 24 May 2021 (Lynham DCJ)

DELIVERED EX TEMPORE ON:

21 April 2023

DELIVERED AT:

Brisbane

HEARING DATE:

21 April 2023

JUDGES:

Boddice JA and Henry and Crow JJ

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – OTHER MATTERS – RECORDING OF CONVICTION – where the applicant seeks leave to appeal a sentence imposed under the Youth Justice Act 1992 (Qld) – where a conviction was recorded – whether the sentence was manifestly excessive by recording a conviction – whether the learned sentencing judge erred by failing to distinguish between offences when considering whether a conviction should be recorded

Youth Justice Act 1992 (Qld), s 184(1), s 220, s 227

R v DBU (2021) 7 QR 453; [2021] QCA 51, cited

COUNSEL:

J M Goldie and G A Feely for the applicant (pro bono)
M A Green for the respondent

SOLICITORS:

Bouchier Khan Lawyers for the applicant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

HENRY J: The applicant seeks leave to appeal a sentence imposed upon her under the Youth Justice Act 1992 (Qld) on 24 May 2021, when she was 17 and a-half years old. Her application was filed about half a month out of time, but she was given an extension of time back on 19 July 2021, a year and nine months ago. There was evidently a prolonged delay in the applicant progressing her application to hearing. She would have finished serving her sentence long ago.

The object of her proposed appeal is to persuade this Court to set aside the recording of convictions against her. Her proposed grounds are:

the sentence imposed was manifestly excessive by the recording of a conviction;
the learned sentencing judge erred by failing to distinguish between the offences when considering whether conviction should be recorded;
the learned sentencing judge erred in not giving proper consideration to a conditional release order.

For the following reasons, the applicant has no prospect of successfully appealing on any of those grounds and her application for leave do so should be refused.

Ground 1 is specifically founded on an argument that the recording of convictions rendered the sentence manifestly excessive. The viability of such a ground cannot tentatively be considered without some contextual overview of the circumstances of the case.

The applicant pleaded guilty to an indictment charging her with six offences on 26 and 27 August 2020, namely, two counts of robbery in company with personal violence, two counts of attempted robbery in company and two counts of unlawful use of a motor vehicle. She also pleaded guilty to a second indictment charging her with two offences committed on the…

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 DCB

Details

AGLC: R v DCB [2023] QCA 73
Case: [2023] QCA 73
Decision Date: 21 April 2023

CaseChat Overview and Summary

The applicant, DCB, sought leave to appeal against the sentence imposed by the District Court of Queensland, which was administered under the Youth Justice Act 1992. DCB challenged the sentencing judge's decision to record a conviction, arguing that the sentence was manifestly excessive by virtue of the conviction. The crux of the appeal was whether the sentencing judge erred by not distinguishing between the various offences when deciding whether to record a conviction.

The legal issues that the court had to determine were whether the sentence was manifestly excessive by recording a conviction and whether the learned sentencing judge had erred in failing to distinguish between the different offences when considering whether a conviction should be recorded. The court considered the relevant statutory provisions and case law to address these issues. It examined whether the sentencing judge had considered all the relevant factors in deciding to record a conviction and whether the decision was based on an error of law.

The court held that the sentence was not manifestly excessive and that there was no error in the sentencing judge's failure to distinguish between the offences. The court found that the sentencing judge had considered all the relevant factors and had not erred in law. The court dismissed the application for leave to appeal, concluding that the sentence was not manifestly excessive and that there was no error in the sentencing judge's approach. The court emphasised the importance of considering the seriousness of the offence, the offender's culpability, and the need to deter the offender and others from committing similar offences when deciding whether to record a conviction.

No orders were made in favour of the applicant.

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 DCB [2023] QCA 73
PARTIES:	R v DCB (applicant)
FILE NO/S:	CA No 171 of 2021 DC No 135 of 2021 DC No 158 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Brisbane – Date of Sentence: 24 May 2021 (Lynham DCJ)
DELIVERED EX TEMPORE ON:	21 April 2023
DELIVERED AT:	Brisbane
HEARING DATE:	21 April 2023
JUDGES:	Boddice JA and Henry and Crow JJ
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – OTHER MATTERS – RECORDING OF CONVICTION – where the applicant seeks leave to appeal a sentence imposed under the Youth Justice Act 1992 (Qld) – where a conviction was recorded – whether the sentence was manifestly excessive by recording a conviction – whether the learned sentencing judge erred by failing to distinguish between offences when considering whether a conviction should be recorded Youth Justice Act 1992 (Qld), s 184(1), s 220, s 227 R v DBU (2021) 7 QR 453; [2021] QCA 51, cited
COUNSEL:	J M Goldie and G A Feely for the applicant (pro bono) M A Green for the respondent
SOLICITORS:	Bouchier Khan Lawyers for the applicant (pro bono) Director of Public Prosecutions (Queensland) for the respondent