R v FN

Case [2005] QCA 113 7 April 2005

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SUPREME COURT OF QUEENSLAND

CITATION: R v FN [2005] QCA 113
PARTIES: R
v
FN
(applicant)
FILE NO/S: CA No 24 of 2005
DC No 7 of 2005
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING
COURT: District Court at Gladstone
DELIVERED ON: Order delivered ex tempore 7 April 2005
Reasons delivered 15 April 2005
DELIVERED AT: Brisbane
HEARING DATE: 7 April 2005
JUDGES: Williams and Keane JJA and Philippides J
Judgment of the Court

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - PARTICULAR OFFENCES - PROPERTY OFFENCES - where applicant pleaded guilty to arson of a dwelling - where dwelling destroyed by fire - where applicant sentenced to nine months imprisonment and three years probation - where applicant willing to give evidence against accomplices - where applicant aged 18 years with no previous criminal history - whether sentence of actual imprisonment required
Penalties and Sentences Act 1992 (Qld), s 13A, s 188
R v A [1995] QCA 208; (1995) 80 A Crim R 255,
distinguished
R v Collins [2003] QCA 154; CA No 23 of 2003, 9 April
2003, distinguished
R v M [2001] QCA 131; [2002] 1 Qd R 520, cited
R v Mazur (2000) 113 A Crim R 67, considered
R v Perrone (1989) 43 A Crim R 366, considered
R v Webber [2000] QCA 316; (2000) 114 A Crim R 381,
followed

COUNSEL: D Shepherd for applicant
D L Meredith for respondent
SOLICITORS: Legal Aid Queensland for applicant
Director of Public Prosecutions (Queensland) for respondent

THE COURT: On 7 April 2005, the Court made orders granting the application for leave to appeal and allowing the appeal for reasons to be published subsequently. These are the reasons for the orders which were made on 7 April 2005.
On 8 February 2005, the applicant pleaded guilty to charges that on 29 December 2004 at Gladstone he entered a dwelling house with intent to commit an indictable offence on the premises and that he wilfully and unlawfully set fire to that dwelling house. The dwelling house in question was destroyed by fire.
The applicant was born on 8 November 1986. He was 18 years of age at the time of the offences and at the time of sentence.
The applicant was sentenced on 10 February 2005 to nine months imprisonment and three years probation. The learned sentencing judge declared that two days of pre-sentence custody, being 8 and 9 February 2005, should be taken into account in relation to a term of imprisonment.
Circumstances of the offence
On the afternoon of 29 December 2004, the applicant, who lived at a youth shelter near the house which was burned down, and two other young people were under the unoccupied house. One of his companions, a young female, suggested that they burn the house down. The other male person who was with the applicant tried…

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 FN

Details

AGLC: R v FN [2005] QCA 113
Case: [2005] QCA 113
Decision Date: 7 April 2005

CaseChat Overview and Summary

The case of R v FN involved an appeal against the sentence given to the applicant, who had pleaded guilty to arson of a dwelling. The dwelling was completely destroyed by fire, and the applicant was sentenced to nine months in imprisonment and three years of probation. The applicant, aged 18 at the time of the offence, had no previous criminal history and expressed a willingness to testify against his accomplices. The court was tasked with determining whether the sentence of actual imprisonment was necessary, considering the applicant's age, lack of a criminal record, and cooperation with authorities.

The legal issues before the court included whether the seriousness of the offence warranted a sentence of actual imprisonment and, if so, what the appropriate length of that sentence should be. The court also needed to assess the deterrent effect of the sentence on the applicant and potential future offenders, as well as the principles of rehabilitation and proportionality in sentencing.

The court deliberated on these issues, ultimately concluding that while a sentence of actual imprisonment was necessary to convey the gravity of the offence and deter others, it did not need to extend beyond the time already served. The court recognised the applicant's youth, clean criminal record, and willingness to cooperate with authorities as mitigating factors. The court decided to reduce the sentence of actual imprisonment to the period already served and adjust the probation period accordingly. The court also noted that the statutory requirement to state the reasons for the sentence reduction in closed court may not mandate disclosure of the original sentence. The detailed reasons for the judgment, including the original sentence, were to be provided to the parties and sealed for future disclosure only under specific circumstances.

The court made the following orders on 7 April 2005, reflecting these considerations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Having considered these matters, we came to the conclusion that a sentence of actual imprisonment was required to bring home to the applicant the seriousness of his conduct and to deter others, but that it was not necessary that it be prolonged beyond the time actually served from 8 February 2005 until 7 April 2005. Conclusion We conclude that the sentence of actual imprisonment should be reduced to the period already served and the period of probation thereafter reduced to two years. It is not clear that s 13A(7) of the Act requires this Court to state in closed court that the sentence is being reduced under that section and to state the sentence that the Court would otherwise have imposed. In light of the cautionary suggestion of this Court in R v M,[13] these statements will be contained in further reasons for judgment made available only to the parties with another copy to be placed in a sealed envelope not to be opened save by order of the court or upon an application under s 188(2) of the Act. [13] [2001] QCA 131 at [11]; [2002] 1 Qd R 520 at 524. For these reasons the Court made the following orders on 7 April 2005:

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

R v FN [2005] QCA 113

Most Recent Citation

R v AAT [2014] QCA 41

Cases Citing This Decision

R v Leslie [2016] QCA 15
Citation 1 (Para 1)

…entence of imprisonment with immediate parole rather than a period of actual custody was appropriate. [1][2000] VSCA 111 (8 June 2000) [24]. [2][2005] QCA 113 (15 April 2005) [27].…
R v AAT [2014] QCA 41
Citation 2 (Para 1)

…derable financial loss and the potential for a threat to the lives of others. The decisions referred to by the applicant in his submissions of R v FN [2005] QCA 113 and R v Moenoa [1995] QCA 208 were validly distinguished by the respondent. In R v FN the offence was unplanned and without motivation, the offender…

See all citing cases →

Cases Cited

R v Collins [2003] QCA 154
Citation 1 (Para 16)

…nd willing to make restitution. In A the offender was 16 years of age at the time of the offence and the maximum term of detention was 10 years. [10] [2003] QCA 154; CA No 23 of 2003, 9 April 2003. [11] [1995] QCA 208 at [12], (1995) 80 A Crim R 255 at 257. Cf R v Prescott [1996] QCA 317; CA No 234 of 1996, 30 Au…
R v Pike [2002] QCA 242
Citation 2 (Para 6)

…s always regarded arson and the need for strong deterrent sentences.[4] [3] R v Henderson [1993] QCA 336; CA No 198 of 1993, 16 August 1993; R v Pike [2002] QCA 242; CA No 132 of 2002, 15 July 2002; R v Barling [1999] QCA 16; CA No 304 of 1998, 5 February 1999. [4] R v Moore [1992] QCA 091; CA No 281 of 1991, 28…
R v McGrath [2001] QCA 131
Citation 3 (Para 21)

…ith another copy to be placed in a sealed envelope not to be opened save by order of the court or upon an application under s 188(2) of the Act. [13] [2001] QCA 131 at [11]; [2002] 1 Qd R 520 at 524.…
R v Gladkowski [2000] QCA 352
Citation 4 (Para 18)

…guilty." [12] [2000] QCA at [16]; (2000) 114 A Crim R 381 at 384. As to the extent of "an appropriate or not uncommon discount", see R v Gladkowski [2000] QCA 352 at [7]; (2000) 115 A Crim R 446 at 447 - 448.…
R v Webber [2000] QCA 316
Citation 5 (Para 4)

…co-operation. To this extent the sentencing process has miscarried and it is necessary for this court itself to impose an appropriate sentence." [1] [2000] QCA 316 at [3], (2000) 114 A Crim R 381 at 382.…
R v Barling [1999] QCA 16
Citation 6 (Para 6)

…tences.[4] [3] R v Henderson [1993] QCA 336; CA No 198 of 1993, 16 August 1993; R v Pike [2002] QCA 242; CA No 132 of 2002, 15 July 2002; R v Barling [1999] QCA 16; CA No 304 of 1998, 5 February 1999. [4] R v Moore [1992] QCA 091; CA No 281 of 1991, 28 April 1992, a case of a 26 year old first offender who was s…
R v P [1996] QCA 317
Citation 7 (Para 16)

…ention was 10 years. [10] [2003] QCA 154; CA No 23 of 2003, 9 April 2003. [11] [1995] QCA 208 at [12], (1995) 80 A Crim R 255 at 257. Cf R v Prescott [1996] QCA 317; CA No 234 of 1996, 30 August 1996.…
R v Maniadis [1996] QCA 242
Citation 8 (Para 5)

…lice. The Court received the applicant's written undertaking to give evidence in relation to that matter if required to do so.[2] [2] Cf R v Maniadis [1996] QCA 242; [1997] 1 Qd R 593 at 595 - 597. This course was appropriate having regard to the failure of the parties at first instance to observe the requirement…
R v A [1995] QCA 208
Citation 9 (Para 16)

…16 years of age at the time of the offence and the maximum term of detention was 10 years. [10] [2003] QCA 154; CA No 23 of 2003, 9 April 2003. [11] [1995] QCA 208 at [12], (1995) 80 A Crim R 255 at 257. Cf R v Prescott [1996] QCA 317; CA No 234 of 1996, 30 August 1996.…
R v Moore [1992] QCA 091
Citation 10 (Para 6)

…6 August 1993; R v Pike [2002] QCA 242; CA No 132 of 2002, 15 July 2002; R v Barling [1999] QCA 16; CA No 304 of 1998, 5 February 1999. [4] R v Moore [1992] QCA 091; CA No 281 of 1991, 28 April 1992, a case of a 26 year old first offender who was sentenced to six months actual imprisonment with a head sentence of…
R v Henderson [1993] QCA 336
Citation 11 (Para 6)

…his reflects the serious concern with which the community has always regarded arson and the need for strong deterrent sentences.[4] [3] R v Henderson [1993] QCA 336; CA No 198 of 1993, 16 August 1993; R v Pike [2002] QCA 242; CA No 132 of 2002, 15 July 2002; R v Barling [1999] QCA 16; CA No 304 of 1998, 5 Februar…

Legislation Cited

Penalties and Sentences Act 1992 (Qld) 13A
2 mentions (from Para 3)

CITATION:	R v FN [2005] QCA 113
PARTIES:	R v FN (applicant)
FILE NO/S:	CA No 24 of 2005 DC No 7 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Gladstone
DELIVERED ON:	Order delivered ex tempore 7 April 2005 Reasons delivered 15 April 2005
DELIVERED AT:	Brisbane
HEARING DATE:	7 April 2005
JUDGES:	Williams and Keane JJA and Philippides J Judgment of the Court
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - PARTICULAR OFFENCES - PROPERTY OFFENCES - where applicant pleaded guilty to arson of a dwelling - where dwelling destroyed by fire - where applicant sentenced to nine months imprisonment and three years probation - where applicant willing to give evidence against accomplices - where applicant aged 18 years with no previous criminal history - whether sentence of actual imprisonment required
Penalties and Sentences Act 1992 (Qld), s 13A, s 188
R v A [1995] QCA 208; (1995) 80 A Crim R 255,

COUNSEL:	D Shepherd for applicant D L Meredith for respondent
SOLICITORS:	Legal Aid Queensland for applicant Director of Public Prosecutions (Queensland) for respondent