R v Gray - [2012] QCA 144

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gray [2012] QCA 144

PARTIES:

R
v
GRAY, Benjamin Ian
(applicant)

FILE NO/S:

CA No 32 of 2012
DC No 127 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

1 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

28 May 2012

JUDGES:

Holmes and Fraser JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The application for leave to appeal is refused.1.

The Deputy Registrar of the District Court is directed to correct the Court Order sheet in District Court file number 127 of 2011 (The Queen v Benjamin Ian Gray and Frederick Norman Jubber) by amending the entry “GRAY 1 count x possessing a dangerous drug” so that it reads “GRAY 1 count x robbery in company with personal violence.”2.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted on plea of guilty of robbery in company with personal violence and sentenced to three years imprisonment with parole release date fixed at after 12 months – where applicant was 18 years old at time of offence and 19 years old at time of sentencing – where applicant had prior criminal history including three previous offences of violence – where applicant argued he should be given some benefit for compliance with bail conditions whilst awaiting sentence – whether sentence manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where applicant convicted on plea of guilty of robbery in company with personal violence and sentenced to three years imprisonment with parole release date fixed at after 12 months – where co-offender sentenced to three years imprisonment, suspended after six months for an operational period of three years, for the same offence plus concurrent term of six months imprisonment for unlawful possession of dangerous drug cannabis – where applicant was 18 years old at time of offence and 19 years old at time of sentencing – where co-offender was 21 years old at time of offence – where applicant had prior criminal history including three previous offences of violence – where co-offender had prior criminal history including drug offences and dangerous operation of vehicle – where co-offender had favourable reference by employer at sentencing – where applicant argued on appeal that offence was idea of co-offender – where applicant’s counsel at sentencing admitted joint criminal enterprise and to treat participation as equal – whether miscarriage of justice

Penalties and Sentences Act 1992 (Qld), s 9(3)

Green v The Queen;Quinn v The Queen (2011) 86 ALJR 36; [2011] HCA 49, cited
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA…

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 Gray

Details

AGLC: R v Gray [2012] QCA 144
Case: [2012] QCA 144
Decision Date: 1 June 2012

CaseChat Overview and Summary

The applicant, Benjamin Ian Gray, appealed against his sentence for robbery in company with personal violence, arguing that it was manifestly excessive. Gray had pleaded guilty to the offence and was sentenced to three years imprisonment, with a parole release date set for after 12 months. Gray was 18 years old at the time of the offence and 19 at the time of sentencing. He had a prior criminal history, including three previous offences of violence. Gray contended that the sentence was excessive, partly due to his compliance with bail conditions while awaiting sentencing, and that there was a miscarriage of justice due to parity issues with his co-offender.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether there was a miscarriage of justice due to parity concerns between Gray and his co-offender. The court needed to consider the principle of parity between co-offenders and whether the disparity in sentences could be justified. Additionally, the court assessed whether the sentence was excessive in light of Gray's compliance with bail conditions and his prior criminal history.

The court found that the sentence was not manifestly excessive and that there was no miscarriage of justice. The court reasoned that the disparity in sentences between Gray and his co-offender could be justified, given the differences in their criminal histories and other mitigating factors presented at sentencing. The court further held that Gray's compliance with bail conditions did not warrant a lesser sentence. The court was satisfied that the sentence imposed was appropriate, considering all relevant factors.

The final orders of the court were that the application for leave to appeal was refused. Additionally, the Deputy Registrar of the District Court was directed to correct the Court Order sheet in District Court file number 127 of 2011 by amending the entry regarding Gray's conviction to accurately reflect his charge of robbery in company with personal violence.

Orders

Orders of the court

The application for leave to appeal is refused.1.

The Deputy Registrar of the District Court is directed to correct the Court Order sheet in District Court file number 127 of 2011 (The Queen v Benjamin Ian Gray and Frederick Norman Jubber) by amending the entry “GRAY 1 count x possessing a dangerous drug” so that it reads “GRAY 1 count x robbery in company with personal violence.”2.

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 Gray [2012] QCA 144
PARTIES:	R v GRAY, Benjamin Ian (applicant)
FILE NO/S:	CA No 32 of 2012 DC No 127 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Mackay
DELIVERED ON:	1 June 2012
DELIVERED AT:	Brisbane
HEARING DATE:	28 May 2012
JUDGES:	Holmes and Fraser JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The application for leave to appeal is refused.1. The Deputy Registrar of the District Court is directed to correct the Court Order sheet in District Court file number 127 of 2011 (The Queen v Benjamin Ian Gray and Frederick Norman Jubber) by amending the entry “GRAY 1 count x possessing a dangerous drug” so that it reads “GRAY 1 count x robbery in company with personal violence.”2.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted on plea of guilty of robbery in company with personal violence and sentenced to three years imprisonment with parole release date fixed at after 12 months – where applicant was 18 years old at time of offence and 19 years old at time of sentencing – where applicant had prior criminal history including three previous offences of violence – where applicant argued he should be given some benefit for compliance with bail conditions whilst awaiting sentence – whether sentence manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where applicant convicted on plea of guilty of robbery in company with personal violence and sentenced to three years imprisonment with parole release date fixed at after 12 months – where co-offender sentenced to three years imprisonment, suspended after six months for an operational period of three years, for the same offence plus concurrent term of six months imprisonment for unlawful possession of dangerous drug cannabis – where applicant was 18 years old at time of offence and 19 years old at time of sentencing – where co-offender was 21 years old at time of offence – where applicant had prior criminal history including three previous offences of violence – where co-offender had prior criminal history including drug offences and dangerous operation of vehicle – where co-offender had favourable reference by employer at sentencing – where applicant argued on appeal that offence was idea of co-offender – where applicant’s counsel at sentencing admitted joint criminal enterprise and to treat participation as equal – whether miscarriage of justice Penalties and Sentences Act 1992 (Qld), s 9(3) Green v The Queen;Quinn v The Queen (2011) 86 ALJR 36; [2011] HCA 49, cited Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA…