R v Harlow - [2012] QCA 245

SUPREME COURT OF QUEENSLAND

CITATION:

R v Harlow [2012] QCA 245

PARTIES:

R
v
HARLOW, Jake William
(applicant/appellant)

FILE NO/S:

CA No 201 of 2012
DC No 244 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED EX TEMPORE ON:

12 September 2012

DELIVERED AT:

Brisbane

HEARING DATE:

12 September 2012

JUDGE:

Holmes and Gotterson JJA, Philip McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Orders delivered ex tempore on 12 September 2012:

1.      Leave to appeal granted.

2.      Appeal allowed.

3.      The date for the applicant’s release be fixed at 12 September 2012.

4.      It is declared that the applicant has spent a period of 18 days from 10 August 2012 to 28 August 2012 in presentence custody.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where the appellant pleaded guilty to a charge of attempted armed robbery in company – where the appellant was sentenced to 12 months’ imprisonment with parole after two months of the term – where the appellant has currently served 18 days of that sentence – where a co-offender of the appellant was sentenced as a principal offender and received a sentence with immediate parole – whether the sentence imposed on the appellant offends the principle of parity such that he should be released on parole immediately

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, considered
Postiglione v the Queen (1997) 189 CLR 295; [1997] HCA 26, considered
R v Dullroy and Yates; ex parte Attorney-General (Qld)[2005] QCA 219, cited
R v Kuzmanovski; ex parte Attorney-General (Qld)[2012] QCA 19, cited

COUNSEL:

S L Kissick for the applicant/appellant
B J Merrin for the respondent

SOLICITORS:

McMillan Kelly and Thomas Lawyers for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

PHILIP McMURDO J: On 10 August 2012, the applicant was sentenced in the District Court at Ipswich for an offence of attempted armed robbery in company. The sentence was 12 months' imprisonment with a parole release date set as 10 October, that is, after two months of the term. He applies for leave to appeal against that sentence. He was granted bail pending appeal on 28 August, so that he has spent 18 days in custody.

The applicant pleaded guilty and there was no dispute about any fact. The offence was committed in this way. The applicant and three others decided to rob a convenience store which was operated by a woman in her 50's. The applicant was then aged 20. The others were his 17 year old brother and two 14 year old boys. The applicant drove them to the store and waited in the car whilst they went inside. They demanded money.

One of the 14 year olds was carrying a knife, which belonged to the applicant's brother. The boy carrying the knife demanded money, as did…

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 Harlow

Details

AGLC: R v Harlow [2012] QCA 245
Case: [2012] QCA 245
Decision Date: 12 September 2012

CaseChat Overview and Summary

The case of R v Harlow involved an appellant who had pleaded guilty to a charge of attempted armed robbery in company. The appellant was sentenced to 12 months’ imprisonment, with parole eligibility after two months. At the time of the appeal, the appellant had served 18 days of his sentence. A co-offender, who was sentenced as a principal offender, was granted immediate parole. The appellant argued that the disparity in their sentences violated the principle of parity, and he sought release on parole immediately. The court was tasked with determining whether the sentence imposed on the appellant was appropriate and if it breached the principle of parity in relation to his co-offender's sentence.

The primary legal issue before the court was whether the appellant’s sentence contravened the principle of parity, which requires that similar offenders be treated similarly. The court considered whether the delay in parole eligibility for the appellant was justified, given that his co-offender, who was sentenced as a principal offender, had been granted immediate parole. The court also needed to assess if the principle of parity was breached by the disparity in the sentences, and whether this breach warranted the appellant's immediate release on parole.

In delivering the judgment, the court held that the disparity in the sentences between the appellant and his co-offender did indeed breach the principle of parity. The court found that the delay in parole eligibility for the appellant was not justified, given the circumstances and the immediate parole granted to the co-offender. Consequently, the appeal was allowed, and the appellant was to be released on parole immediately. The court fixed the date for the appellant's release at the date of the judgment, 12 September 2012. It was also declared that the appellant had already served 18 days in presentence custody from 10 August 2012 to 28 August 2012.

Orders

Orders of the court

Orders delivered ex tempore on 12 September 2012:

1. Leave to appeal granted.

2. Appeal allowed.

3. The date for the applicant’s release be fixed at 12 September 2012.

4. It is declared that the applicant has spent a period of 18 days from 10 August 2012 to 28 August 2012 in presentence custody.

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 Harlow [2012] QCA 245
PARTIES:	R v HARLOW, Jake William (applicant/appellant)
FILE NO/S:	CA No 201 of 2012 DC No 244 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED EX TEMPORE ON:	12 September 2012
DELIVERED AT:	Brisbane
HEARING DATE:	12 September 2012
JUDGE:	Holmes and Gotterson JJA, Philip McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Orders delivered ex tempore on 12 September 2012: 1. Leave to appeal granted. 2. Appeal allowed. 3. The date for the applicant’s release be fixed at 12 September 2012. 4. It is declared that the applicant has spent a period of 18 days from 10 August 2012 to 28 August 2012 in presentence custody.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where the appellant pleaded guilty to a charge of attempted armed robbery in company – where the appellant was sentenced to 12 months’ imprisonment with parole after two months of the term – where the appellant has currently served 18 days of that sentence – where a co-offender of the appellant was sentenced as a principal offender and received a sentence with immediate parole – whether the sentence imposed on the appellant offends the principle of parity such that he should be released on parole immediately Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, considered Postiglione v the Queen (1997) 189 CLR 295; [1997] HCA 26, considered R v Dullroy and Yates; ex parte Attorney-General (Qld)[2005] QCA 219, cited R v Kuzmanovski; ex parte Attorney-General (Qld)[2012] QCA 19, cited
COUNSEL:	S L Kissick for the applicant/appellant B J Merrin for the respondent
SOLICITORS:	McMillan Kelly and Thomas Lawyers for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent