R v H - [2000] QCA 196

[2000] QCA 196

COURT OF APPEAL

McMURDO P
DAVIES JA
MOYNIHAN J

CA No 51 of 2000

THE QUEEN

H Applicant

BRISBANE

..DATE 25/05/2000

JUDGMENT

THE PRESIDENT: The applicant pleaded guilty to one count of robbery in company with personal violence on 7 January 2000. A presentence report was ordered under the Juvenile Justices Act 1992. On 4 February 2000 he was sentenced to three years' probation and 100 hours community service, the maximum community service possible for his age. A conviction was recorded.

He claims the sentence is manifestly excessive in that a conviction should not have been recorded. If a conviction is not to be recorded, the maximum period of probation under the Act is two years: see sections 120, 121, 124(3) and (4) of the Juvenile Justices Act 1992.

On 31 May 1999 the complainant, a 21 year old male and his male companion, bought some take-away food in the Cavill Mall in Surfers Paradise. They walked to a nearby park where they sat down on some swings to eat it. The applicant and his three co-accused, adult males aged from 18 to 20, Punimato, Terry and Angelides, approached them.

Punimato asked the complainant's friend for food and tried to take some chips. After persisting for some time he was successful in getting the chips. Punimato said to the complainant, "Why are you looking at me? Have you got a problem with me?" The complainant made a conciliatory reply.

Punimato demanded drugs or alcohol, especially beer. The complainant responded in the negative. He and his friend stood up and started to back away. Punimato grabbed the chain from the swing and tried to place it around the complainant's neck and demanded his wallet.

The complainant's friend pulled the chain away and tried to help his friend but Punimato had hold of the complainant's jacket. The complainant's friend ran for assistance. Angelides chased after his friend. The complainant tried to run but Punimato pulled him and he lost his balance and fell to the ground. As he fell Punimato punched him to the lower left jaw.

The complainant assumed a protective position on the ground and was kicked to his whole body by all four offenders. The applicant kicked him in the leg area. Angelides kicked him to the lower back. Punimato kicked him to the back, the top of the head and neck and Terry kicked him in the shoulder. Punimato continually demanded his wallet which the complainant eventually provided.

The complainant received at least 10 kicks in total from the four males. The complainant heard the applicant say, "Leave him alone. He has had enough." The applicant then backed away and the other three offenders stopped their assault.

Punimato then walked back to the complainant and again kicked him in the chest, knocking him back down to the ground. The complainant felt a sharp blow to the back of his head, causing him great pain. As he walked away, one of the offenders hit him…

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 H

Details

AGLC: R v H [2000] QCA 196
Case: [2000] QCA 196
Decision Date: 25/05/2000

CaseChat Overview and Summary

The case of R v H, heard in the Queensland Court of Appeal, involves the applicant who was sentenced to three years' probation and 100 hours of community service for a count of robbery in company with personal violence. The applicant contested the sentence, arguing that it was manifestly excessive and that a conviction should not have been recorded. The maximum period of probation without a conviction under the Juvenile Justices Act 1992 is two years.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether a conviction should have been recorded. The court had to consider the objectives and principles of the Juvenile Justices Act 1992, including the importance of rehabilitating children who commit offences and reintegrating them into the community. The court also had to consider the applicant's age, maturity, and cultural background, as well as the impact of recording a conviction on his chances of rehabilitation and employment.

The court found that the applicant's age at the time of the offence, his lack of prior convictions, and his prospects of rehabilitation were significant factors in favour of not recording a conviction. The court also considered the impact of the offence on the victim and the applicant's role in the offence, which was the least of all the offenders. The court found that the learned sentencing judge's discretion miscarried in recording a conviction for an offence committed when the applicant was only 13 years old.

The court granted the application for leave to appeal against sentence and allowed the appeal to the extent of deleting the period of probation for three years and substituting two years' probation, and by deleting the order that a conviction is recorded and replacing it with an order that no conviction is recorded. The court's decision was based on the objectives and principles of the Juvenile Justices Act 1992 and the possible impact of recording a conviction for an offence committed when the applicant was but 13. The orders were as stated by the President.

Orders