R v De Villiers - [1999] QCA 422

99.422

COURT OF APPEAL

de JERSEY CJ
DAVIES JA
JONES J

CA No 165 of 1999

THE QUEEN

ADAM MICHAEL DE VILLIERS
(Applicant) Appellant

BRISBANE

..DATE 07/10/99

JUDGMENT

JONES J: Adam Michael De Villiers appeals against sentences imposed by the District Court at Ipswich upon his conviction following pleas of guilty to eight offences on 18 January 1999.

Details of the offences are:

24 July 1998, one count of armed robbery in company for which he was sentenced to five years' imprisonment;
30 July 1998, one count of armed robbery in company for which a penalty of three years' imprisonment was imposed;
1 August 1998, two counts of armed robbery in company together with one count of doing grievous bodily harm with intent, one count of wounding, and one count of unlawful use of a motor vehicle. For the principal of these offences, he was sentenced to eight years' imprisonment.

The grounds of his appeal are that firstly the sentence is manifestly excessive, secondly that there is no parity between his sentence and the sentence given to a

co-offender, Desmond John McPherson.

The appellant was born on 14 June 1981 and therefore was at the time of the offences little over 17 years of age. He had to be sentenced in accordance with the principles set out in the Penalties and Sentences Act 1992.

In respect of each of the charges, the appellant was in the company of the co-accused, McPherson. McPherson also pleaded guilty to the offences and was later sentenced by the same Judge.

On the material available, the conduct of McPherson involved the use of a knife in each of the robberies to threaten either a hostage or a person in charge of the funds which were to be taken.

McPherson's conduct caused the learned sentencing Judge by way of comparison with the conduct of the appellant to observe:

"You do not seem to me to be the main offender involved in these offences. You did not actually use a knife and even on the occasion that you carried a knife you did not actually threaten anybody with it. You are very much on the periphery for count 2 on indictment 1"

That is the second of the offences I mentioned. Later, Her Honour went on to say that the appellant was not the main perpetrator.

In her remarks, when sentencing McPherson, the learned sentencing Judge said:

"On 18 January 1999 I sentenced your co-accused, Adam De Villiers to the total of eight years' imprisonment with a recommendation after three years for those offences. He was older than you in that he was 17 years of age and therefore an adult. However he had no previous conviction and his involvement in these offences was less serious than yours in that he was the driver for one of the robberies and he was not the person who was armed on each occasion as you were."

It is clear from these two passages that the learned sentencing Judge…

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 De Villiers

Details

AGLC: R v De Villiers [1999] QCA 422
Case: [1999] QCA 422
Decision Date: 7/10/1999

CaseChat Overview and Summary

In the case of R v De Villiers, the appellant, Adam Michael De Villiers, appeals against sentences imposed by the District Court at Ipswich following his conviction on eight counts of armed robbery, grievous bodily harm with intent, wounding, and unlawful use of a motor vehicle. De Villiers was sentenced to a total of thirteen years' imprisonment, with a recommendation for release after serving three years. De Villiers argued that the sentence was manifestly excessive and that there was no parity between his sentence and that of his co-offender, Desmond John McPherson. De Villiers was 17 years old at the time of the offences, while McPherson was 18 years old. The court was required to determine whether the sentence imposed was manifestly excessive and whether there was a parity between the sentences of De Villiers and McPherson. The court found that while the sentencing judge was aware that McPherson's conduct was more serious than De Villiers', the difference in their ages meant that they had to be sentenced under different legislative regimes. De Villiers was sentenced as an adult, while McPherson was sentenced as a juvenile. The court found that the sentence imposed on De Villiers was excessive, having regard to his young age and lack of prior convictions. The court substituted a sentence of six years' imprisonment, with a recommendation for release after serving two and a half years. The appeal was allowed, and the sentence was substituted as indicated.

Orders