R v HBG - [2012] QCA 83

SUPREME COURT OF QUEENSLAND

CITATION:

R v HBG [2012] QCA 83

PARTIES:

R
v
HBG
(applicant)

FILE NO/S:

CA No 210 of 2011
DC No 8 of 2011
DC No 11 of 2011
DC No 129 of 2011
DC No 180 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

5 April 2012

DELIVERED AT:

Brisbane

HEARING DATE:

29 February 2012

JUDGES:

Margaret McMurdo P and Margaret Wilson AJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.     Grant the application for leave to appeal.

2.     Allow the appeal to the extent of:

(a)   setting aside the orders made in Indictment No 129 of 2011 and instead order that a conviction be recorded and that the applicant be sentenced to imprisonment for four and a half months suspended forthwith with an operational period of two years;

(b)   setting aside the sentence imposed on Indictment No 180 of 2011 and instead order that a conviction be recorded and that the applicant be sentenced to imprisonment for nine months suspended forthwith with an operational period of two years;

3.     The sentence imposed at first instance is otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to offences committed over a nine month period – where offences committed before his 17th birthday were dealt with under the Youth Justice Act 1992 (Qld) and those offences committed after under the Penalties and Sentences Act 1992 (Qld) – whether the combined effect of the sentences under the Youth Justice Act 1992 (Qld) and the Penalties and Sentences Act 1992 (Qld) was manifestly excessive – whether time serviced in youth detention was adequately taken into account – whether conviction should have been recorded under Penalties and Sentences Act 1992 (Qld), s 143

Penalties and Sentences Act 1992 (Qld), s 143, s 147, s 148
Youth Justice Act 1992 (Qld), s 218, s 276C, Sch 1

R v DAZ [2012] QCA 31, discussed
R v HBF [1995] QCA 426, discussed
R v M[2001] QCA 11, discussed

COUNSEL:

S J Hamlyn-Harris for the applicant (pro bono)
S P Vasta for the respondent

SOLICITORS:

No appearance for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: This case raises some of the difficulties which can arise when a young offender is sentenced for some offences under the Youth Justice Act 1992 (Qld) and for other offences under the Penalties and Sentences Act 1992 (Qld). The applicant's offending was committed over a nine month period between June 2010 and April 2011. He turned 17 in December 2010 so that the offences committed before that date must be dealt with under the Youth Justice Act and those committed after had to be dealt with under the Penalties and Sentences Act.[1]
[1]Queensland…

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 HBG

Details

AGLC: R v HBG [2012] QCA 83
Case: [2012] QCA 83
Decision Date: 5 April 2012

CaseChat Overview and Summary

The appellant, HBG, appealed against his sentence after pleading guilty to a series of offences committed over a nine-month period. The Queensland Court of Appeal was tasked with determining whether the combined effect of the sentences imposed under the Youth Justice Act 1992 (Qld) and the Penalties and Sentences Act 1992 (Qld) was manifestly excessive or inadequate. The appeal also considered whether the time HBG had already served in youth detention was adequately taken into account, and whether a conviction should have been recorded under section 143 of the Penalties and Sentences Act 1992 (Qld).

The court considered whether the sentence was manifestly excessive or inadequate in light of the principles governing the imposition of sentences for young offenders. The court noted that the cumulative effect of the sentences imposed for offences committed before and after HBG's 17th birthday needed to be assessed, with consideration given to the time he had already served in youth detention. The court also examined whether a conviction should have been recorded under section 143 of the Penalties and Sentences Act 1992 (Qld) for the offences committed after HBG's 17th birthday.

The court concluded that the combined effect of the sentences was manifestly excessive, and that the time HBG had served in youth detention was not adequately taken into account. The court found that a conviction should have been recorded under section 143 of the Penalties and Sentences Act 1992 (Qld) for the offences committed after HBG's 17th birthday. As a result, the appeal was allowed in part, with the court setting aside the orders made in Indictment No 129 of 2011 and ordering a conviction be recorded and that HBG be sentenced to imprisonment for four and a half months suspended forthwith with an operational period of two years. Similarly, the sentence imposed on Indictment No 180 of 2011 was set aside, with a conviction to be recorded and a sentence of imprisonment for nine months suspended forthwith with an operational period of two years. The sentence imposed at first instance was otherwise confirmed.

Orders

Orders of the court

1. Grant the application for leave to appeal.

2. Allow the appeal to the extent of:

(a) setting aside the orders made in Indictment No 129 of 2011 and instead order that a conviction be recorded and that the applicant be sentenced to imprisonment for four and a half months suspended forthwith with an operational period of two years;

(b) setting aside the sentence imposed on Indictment No 180 of 2011 and instead order that a conviction be recorded and that the applicant be sentenced to imprisonment for nine months suspended forthwith with an operational period of two years;

3. The sentence imposed at first instance is otherwise confirmed.

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 HBG [2012] QCA 83
PARTIES:	R v HBG (applicant)
FILE NO/S:	CA No 210 of 2011 DC No 8 of 2011 DC No 11 of 2011 DC No 129 of 2011 DC No 180 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	5 April 2012
DELIVERED AT:	Brisbane
HEARING DATE:	29 February 2012
JUDGES:	Margaret McMurdo P and Margaret Wilson AJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant the application for leave to appeal. 2. Allow the appeal to the extent of: (a) setting aside the orders made in Indictment No 129 of 2011 and instead order that a conviction be recorded and that the applicant be sentenced to imprisonment for four and a half months suspended forthwith with an operational period of two years; (b) setting aside the sentence imposed on Indictment No 180 of 2011 and instead order that a conviction be recorded and that the applicant be sentenced to imprisonment for nine months suspended forthwith with an operational period of two years; 3. The sentence imposed at first instance is otherwise confirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to offences committed over a nine month period – where offences committed before his 17th birthday were dealt with under the Youth Justice Act 1992 (Qld) and those offences committed after under the Penalties and Sentences Act 1992 (Qld) – whether the combined effect of the sentences under the Youth Justice Act 1992 (Qld) and the Penalties and Sentences Act 1992 (Qld) was manifestly excessive – whether time serviced in youth detention was adequately taken into account – whether conviction should have been recorded under Penalties and Sentences Act 1992 (Qld), s 143 Penalties and Sentences Act 1992 (Qld), s 143, s 147, s 148 Youth Justice Act 1992 (Qld), s 218, s 276C, Sch 1 R v DAZ [2012] QCA 31, discussed R v HBF [1995] QCA 426, discussed R v M[2001] QCA 11, discussed
COUNSEL:	S J Hamlyn-Harris for the applicant (pro bono) S P Vasta for the respondent
SOLICITORS:	No appearance for the applicant Director of Public Prosecutions (Queensland) for the respondent