R v GBE - [2018] QCA 345

SUPREME COURT OF QUEENSLAND

CITATION:

R v GBE [2018] QCA 345

PARTIES:

R
v
GBE
(applicant)

FILE NO/S:

CA No 71 of 2018
DC No 20 of 2017

DIVISION:

Court of Appeal

PROCEEDINGS:

Application for Extension (Conviction)
Sentence Application

ORIGINATING COURTS:

Children’s Court at Townsville – Date of Conviction: 10 July 2017; Date of Sentence: 7 September 2017 (Lynham DCJ)

DELIVERED ON:

11 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

30 July 2018

JUDGES:

Fraser and Philippides JJA and Henry J

ORDERS:

1. Application for an extension of time in which to appeal refused.

2. Application for leave to appeal sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – where the applicant was convicted on his plea to one count of riot pursuant to s 61 of the Criminal Code (Qld) with two circumstances of aggravation, causing grievous bodily harm and property damage – where the applicant was part of a group of more than 12 defendants involved in a riot at a Youth Detention Centre – where during the course of the riot the group damaged air-conditioning units, used metal poles as weapons and retrieved other objects which were used to attack staff members – where various staff members suffered injuries – where one staff member was struck in the head with a rock which resulted in the loss of sight in an eye and which constituted the grievous bodily harm – where the applicant seeks an extension of time to lodge an appeal against conviction for the circumstance of aggravation of causing grievous bodily harm – whether refusing the extension of time to lodge an appeal against conviction would result in a miscarriage of justice

CRIMINAL LAW – GENERAL MATTERS – ANCILLARY LIABILITY – COMPLICITY – COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE – PARTICULAR CASES – where the applicant submitted that he could not be lawfully convicted of riot with circumstance of aggravation of causing grievous bodily harm because the Crown did not purport to identify who threw the rock to cause the grievous bodily harm – whether the applicant could be convicted of the circumstance of aggravation as a secondary party by virtue of either s 7 or s 8 of the Criminal Code (Qld) – whether a person can only be convicted of a circumstance of aggravation where the person did the act constituting the relevant circumstance of aggravation – whether the concept “the offence” contemplates only a non-aggravated form of the offence or whether “the offence” involves a circumstance of aggravation where that circumstance of aggravation had been proven to arise – whether the term “offence” means to a particular level or type of punishment depending on the proven circumstances or simply liability to punishment per se

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to riot with two circumstances of aggravation and was sentenced to two…

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 GBE

Details

AGLC: R v GBE [2018] QCA 345
Case: [2018] QCA 345
Decision Date: 11 December 2018

CaseChat Overview and Summary

The applicant was convicted on a plea of guilty to one count of riot under section 61 of the Criminal Code (Qld) with two aggravating circumstances: causing grievous bodily harm and property damage. The conviction arose from the applicant's involvement in a riot at a Youth Detention Centre, where he was part of a group that damaged property, used metal poles as weapons, and retrieved objects to attack staff members. As a result of the riot, several staff members suffered injuries, including one who lost sight in an eye after being struck in the head with a rock. The applicant now sought an extension of time to appeal against the conviction for the aggravated circumstance of causing grievous bodily harm and also sought leave to appeal against the sentence imposed.

The court was required to decide whether the applicant could be lawfully convicted of the aggravated circumstance of causing grievous bodily harm without the Crown identifying who threw the rock. The applicant argued that a conviction for this aggravated circumstance could only be based on the person who actually threw the rock. The court had to determine whether the concept of "the offence" in this context included the aggravated circumstance when it had been proven to arise. Additionally, the court had to consider whether the term "offence" referred to a specific level or type of punishment depending on the proven circumstances, or simply to liability to punishment in general. Lastly, the court needed to decide whether the sentence imposed was manifestly excessive.

The court held that the applicant's application for an extension of time to appeal against the conviction for the aggravating circumstance of causing grievous bodily harm was refused. The court concluded that the refusal would not result in a miscarriage of justice. The applicant's argument that he could only be convicted of the aggravating circumstance if he was the one who threw the rock was rejected. The court found that the concept of "the offence" included the aggravated circumstance when it had been proven to arise, and the term "offence" referred to liability to punishment in general, not a specific level or type of punishment. The court also held that the sentence imposed was not manifestly excessive. Consequently, the application for leave to appeal against the sentence was also refused.

Orders

Orders of the court

1. Application for an extension of time in which to appeal refused.

2. Application for leave to appeal sentence refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v GBE [2018] QCA 345
PARTIES:	R v GBE (applicant)
FILE NO/S:	CA No 71 of 2018 DC No 20 of 2017
DIVISION:	Court of Appeal
PROCEEDINGS:	Application for Extension (Conviction) Sentence Application
ORIGINATING COURTS:	Children’s Court at Townsville – Date of Conviction: 10 July 2017; Date of Sentence: 7 September 2017 (Lynham DCJ)
DELIVERED ON:	11 December 2018
DELIVERED AT:	Brisbane
HEARING DATE:	30 July 2018
JUDGES:	Fraser and Philippides JJA and Henry J
ORDERS:	1. Application for an extension of time in which to appeal refused. 2. Application for leave to appeal sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – where the applicant was convicted on his plea to one count of riot pursuant to s 61 of the Criminal Code (Qld) with two circumstances of aggravation, causing grievous bodily harm and property damage – where the applicant was part of a group of more than 12 defendants involved in a riot at a Youth Detention Centre – where during the course of the riot the group damaged air-conditioning units, used metal poles as weapons and retrieved other objects which were used to attack staff members – where various staff members suffered injuries – where one staff member was struck in the head with a rock which resulted in the loss of sight in an eye and which constituted the grievous bodily harm – where the applicant seeks an extension of time to lodge an appeal against conviction for the circumstance of aggravation of causing grievous bodily harm – whether refusing the extension of time to lodge an appeal against conviction would result in a miscarriage of justice CRIMINAL LAW – GENERAL MATTERS – ANCILLARY LIABILITY – COMPLICITY – COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE – PARTICULAR CASES – where the applicant submitted that he could not be lawfully convicted of riot with circumstance of aggravation of causing grievous bodily harm because the Crown did not purport to identify who threw the rock to cause the grievous bodily harm – whether the applicant could be convicted of the circumstance of aggravation as a secondary party by virtue of either s 7 or s 8 of the Criminal Code (Qld) – whether a person can only be convicted of a circumstance of aggravation where the person did the act constituting the relevant circumstance of aggravation – whether the concept “the offence” contemplates only a non-aggravated form of the offence or whether “the offence” involves a circumstance of aggravation where that circumstance of aggravation had been proven to arise – whether the term “offence” means to a particular level or type of punishment depending on the proven circumstances or simply liability to punishment per se CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to riot with two circumstances of aggravation and was sentenced to two…