R v Duncombe

[2005] QCA 142

SUPREME COURT OF QUEENSLAND

CITATION:

R v Duncombe [2005] QCA 142

PARTIES:

R
v
DUNCOMBE, Lockwood Dennis
(applicant)

FILE NO/S:

CA No 410 of 2004
SC No 57 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

6 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2005

JUDGES:

McMurdo P, Jerrard JA and Cullinane J
Separate reasons for judgment of each member of the Court, McMurdo P and Cullinane J concurring as to the order made, Jerrard JA dissenting in part

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – applicant pleaded guilty to manslaughter, assault occasioning bodily harm and stealing – applicant sentenced to ten years imprisonment for manslaughter with concurrent terms of three and two years respectively for other offences – whether with reference to comparable cases the sentence was manifestly excessive

APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – applicant had previously appeared both as a juvenile and an adult in Tasmanian courts – sentencing judge mentioned the applicant’s criminal history as commencing at age 15 – s 148(1) of the Juvenile Justice Act 1992 (Qld) prohibits the admission of juvenile offences where no conviction recorded – whether s 148(1) applies to interstate offences – whether the judge erred by placing weight on the applicant’s juvenile offences where no conviction recorded

Juvenile Justice Act 1992 (Qld), s 148(1)
Youth Justice Act 1997 (Tas), s 47, s 49

R v Bojovic [1999] QCA 206; [2000] 2 Qd R 183, distinguished
R v George; ex parte A-G (Qld) [2004] QCA 450; CA No 316 of 2004, 18 November 2004, considered
R v Smith [2000] QCA 169; CA No 409 of 1999, 9 May 2000, distinguished
R v Tientjes; ex parte A-G (Qld) [1999] QCA 480; CA No 229 of 1999, 16 November 1999, distinguished

COUNSEL:

The applicant appeared on his own behalf
R G Martin SC for the respondent

SOLICITORS:

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

1. McMURDO P:  The relevant facts and issues are set out in the reasons for judgment of Jerrard JA.  I am in general agreement with those reasons subject to the following observations.  I reach a slightly different conclusion to Jerrard JA and would refuse Mr Duncombe's application for leave to appeal against sentence.

Juvenile Justice Act 1992 (Qld), s 148(1)

1. Mr Duncombe contends that the learned primary judge was wrongly referred to offences committed by him as a juvenile in Tasmania and that this offends s 148(1) Juvenile Justice Act 1992 (Qld) which provides:

"In a proceeding against an adult for an offence, there must not be admitted against the adult evidence that the adult was found guilty as a child of an offence…