R v Hbe - [2011] QCA 378

SUPREME COURT OF QUEENSLAND

CITATION:

R v HBE [2011] QCA 378

PARTIES:

R
v
HBE (a child)
(applicant)

FILE NO/S:

CA No 295 of 2011
DC No 1 of 2011
DC No 21 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Townsville

DELIVERED ON:

20 December 2011

DELIVERED AT:

Brisbane

HEARING DATE:

2 December 2011

JUDGES:

Margaret McMurdo P, White JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.          Application for leave to appeal against sentence granted.

2.          Appeal against sentence allowed.

3.          The sentence for the offence of arson varied by substituting detention for a period of 69 days in lieu of detention for six months.

4.          Set aside the sentence for the two offences of burglary and in lieu order the applicant to serve 100 hours of community service and the child must report to the chief executive of the Department of Communities within two business days of the making of this order.

5.          Set aside the order recording convictions for all offences and order that convictions not be recorded.

6.          The sentence of probation for the other offences is confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant was 13 years nine months old when he and other children were playing with cigarette lighters in a vacant building which caught fire and was destroyed – where applicant pleaded guilty to arson and receiving tainted property – where sentencing delayed while pre-sentence report was prepared and a youth justice conference convened – where applicant committed offence of burglary and steal, burglary and three offences of unlawfully using a motor vehicle whilst on bail for the first offences – where applicant did not attend the youth justice conference – whether sentence of detention of six months for the arson and four months for the burglaries were manifestly excessive – whether detention the only appropriate sentence in the circumstances of the case – whether convictions should have been recorded

Youth Justice Act 1992 (Qld), s 150, s 151, s 161, s 183, s 184, s 208

R v A (1995) 80 A Crim R 255; [1995] QCA 208, considered
R v C [2001] QCA 552, considered
R v P [1996] QCA 317, considered

COUNSEL:

D C Shepherd for the applicant
D A Holliday for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: I agree with Mullins J's reasons for granting this application for leave to appeal against sentence and allowing the appeal. I agree with the orders proposed by Mullins J.

WHITE JA: I have read the reasons for judgment of Mullins J and agree with those reasons and the orders which her Honour proposes.

This young offender, as her Honour has observed, is strongly in need of…

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 Hbe

Details

AGLC: R v Hbe [2011] QCA 378
Case: [2011] QCA 378
Decision Date: 20 December 2011

CaseChat Overview and Summary

The applicant, who was 13 years and nine months old at the time of the offence, appealed against his sentence for arson and related charges. The lower court found him guilty of arson for setting a fire with cigarette lighters in a vacant building, and of receiving tainted property. The applicant also pleaded guilty to burglary, stealing, another burglary, and three counts of unlawfully using a motor vehicle while on bail. The court delayed sentencing to allow for a pre-sentence report and a youth justice conference, which the applicant did not attend. The applicant contested the excessiveness of the sentence and argued that detention was not the only appropriate sentence, and that convictions should not have been recorded.

The court considered whether the sentence was manifestly excessive or inadequate, and whether detention was the only appropriate sentence. The court noted the applicant's age, his history of offending, and the seriousness of the offences. The court found that the sentence for the arson offence was manifestly excessive, and that detention was not the only appropriate sentence. The court also found that the convictions should not have been recorded.

The court granted the applicant leave to appeal against the sentence. The appeal was allowed, and the sentence for the arson offence was varied to detention for 69 days in lieu of six months. The sentences for the two burglary offences were set aside, and the applicant was ordered to serve 100 hours of community service instead. The order recording convictions for all offences was set aside, and it was ordered that no convictions be recorded. The sentence of probation for the other offences was confirmed.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal against sentence allowed.

3. The sentence for the offence of arson varied by substituting detention for a period of 69 days in lieu of detention for six months.

4. Set aside the sentence for the two offences of burglary and in lieu order the applicant to serve 100 hours of community service and the child must report to the chief executive of the Department of Communities within two business days of the making of this order.

5. Set aside the order recording convictions for all offences and order that convictions not be recorded.

6. The sentence of probation for the other offences is confirmed.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v HBE [2011] QCA 378
PARTIES:	R v HBE (a child) (applicant)
FILE NO/S:	CA No 295 of 2011 DC No 1 of 2011 DC No 21 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Townsville
DELIVERED ON:	20 December 2011
DELIVERED AT:	Brisbane
HEARING DATE:	2 December 2011
JUDGES:	Margaret McMurdo P, White JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted. 2. Appeal against sentence allowed. 3. The sentence for the offence of arson varied by substituting detention for a period of 69 days in lieu of detention for six months. 4. Set aside the sentence for the two offences of burglary and in lieu order the applicant to serve 100 hours of community service and the child must report to the chief executive of the Department of Communities within two business days of the making of this order. 5. Set aside the order recording convictions for all offences and order that convictions not be recorded. 6. The sentence of probation for the other offences is confirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant was 13 years nine months old when he and other children were playing with cigarette lighters in a vacant building which caught fire and was destroyed – where applicant pleaded guilty to arson and receiving tainted property – where sentencing delayed while pre-sentence report was prepared and a youth justice conference convened – where applicant committed offence of burglary and steal, burglary and three offences of unlawfully using a motor vehicle whilst on bail for the first offences – where applicant did not attend the youth justice conference – whether sentence of detention of six months for the arson and four months for the burglaries were manifestly excessive – whether detention the only appropriate sentence in the circumstances of the case – whether convictions should have been recorded Youth Justice Act 1992 (Qld), s 150, s 151, s 161, s 183, s 184, s 208 R v A (1995) 80 A Crim R 255; [1995] QCA 208, considered R v C [2001] QCA 552, considered R v P [1996] QCA 317, considered
COUNSEL:	D C Shepherd for the applicant D A Holliday for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent