R v HBV - [2019] QCA 21

SUPREME COURT OF QUEENSLAND

CITATION:

R v HBV [2019] QCA 21

PARTIES:

R
v
HBV
(applicant)

FILE NO/S:

CA No 294 of 2018
DC No 16 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Bundaberg – Date of Sentence: 19 October 2018 (Clare SC DCJ)

DELIVERED ON:

Date of Orders: 7 December 2018
Date of Publication of Reasons: 19 February 2019

DELIVERED AT:

Brisbane

HEARING DATE:

7 December 2018

JUDGES:

Sofronoff P and Philippides JA and Davis J

ORDERS:

Date of Orders: 7 December 2018

1.    Leave to appeal granted.

2.    Appeal allowed.

3.    The sentence of detention of nine months is confirmed.

4.    The detention order be immediately suspended and that the applicant be immediately released from detention upon a conditional release order for a period of three months.

5.    The requirements of the conditional release order are that the applicant:

(a)       must participate as directed by the Chief Executive of Youth Justice Services in the conditional release program.

(b)      must abstain from violation of the law during the period of this order.

(c)       must comply with every reasonable direction of the chief executive.

(d)      must report and receive visits as directed by the chief executive.

(e)      must either personally or by a parent notify the chief executive within two business days of any change of address, employment or school.

(f)       must not leave, or stay out of Queensland without prior approval of the Chief Executive.

6.    A conviction is not recorded.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was a juvenile – where the applicant was convicted of one count of armed robbery with actual violence committed in company and sentenced to nine months detention – whether the trial judge erred by considering irrelevant matters – whether the sentence was manifestly excessive

Youth Justice Act 1992 (Qld)

Fardon v Attorney-General(Qld) (2004) 223 CLR 575; [2004] HCA 46, cited
R v SCU[2017] QCA 198, cited
Veen v The Queen[No 2] (1988) 164 CLR 465; [1988] HCA 14, cited

COUNSEL:

P Wilson for the applicant
C N Marco for the respondent

SOLICITORS:

Howden Saggers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons of Davis J.
PHILIPPIDES JA: The reasons of Davis J reflect the basis for my joining in the orders made on 7 December 2018.
DAVIS J: The applicant is an indigenous boy who has just turned 16 years of age. He sought leave to appeal against a sentence of nine months detention with release from custody after serving four-and-a-half months which was imposed upon him in the Childrens Court sitting at Bundaberg on 19 October 2018, upon his conviction on his plea of guilty to one count of armed robbery with actual violence committed in company. He challenged the sentence and…

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 HBV

Details

AGLC: R v HBV [2019] QCA 21
Case: [2019] QCA 21
Decision Date: 19 February 2019

CaseChat Overview and Summary

In this case, the applicant, HBV, sought leave to appeal against the sentence imposed by the trial judge. HBV was a juvenile who was convicted of one count of armed robbery with actual violence committed in company. The applicant was sentenced to nine months detention. The appeal was based on the contention that the trial judge erred in considering irrelevant matters and that the sentence was manifestly excessive. The Court of Appeal was required to determine whether the sentence imposed was manifestly excessive or inadequate, and if the trial judge had erred in considering irrelevant matters.

The Court of Appeal considered whether the sentence imposed by the trial judge was manifestly excessive or inadequate. The Court noted that the trial judge had considered a number of matters that were not relevant to the sentencing process. The Court held that the sentence imposed was manifestly excessive and that the trial judge had erred in considering irrelevant matters. The Court of Appeal concluded that the sentence imposed was manifestly excessive and that the applicant was entitled to appeal against the sentence.

The Court of Appeal allowed the appeal and confirmed the sentence of detention of nine months. However, the Court suspended the detention order and released the applicant from detention immediately. The Court ordered that the applicant be subject to a conditional release order for a period of three months. The Court further ordered that the applicant must participate in a program directed by the Chief Executive of Youth Justice Services, must abstain from violation of the law, comply with reasonable directions, report and receive visits as directed, notify the Chief Executive of any changes to address, employment or school, and must not leave or stay out of Queensland without prior approval. The Court did not record a conviction against the applicant.

The final orders of the Court of Appeal were that leave to appeal was granted, the appeal was allowed, the sentence of detention of nine months was confirmed, the detention order was suspended and the applicant was immediately released from detention, a conditional release order was made for a period of three months, and a conviction was not recorded.

Orders

Orders of the court

Date of Orders: 7 December 2018

1. Leave to appeal granted.

2. Appeal allowed.

3. The sentence of detention of nine months is confirmed.

4. The detention order be immediately suspended and that the applicant be immediately released from detention upon a conditional release order for a period of three months.

5. The requirements of the conditional release order are that the applicant:

(a) must participate as directed by the Chief Executive of Youth Justice Services in the conditional release program.

(b) must abstain from violation of the law during the period of this order.

(d) must report and receive visits as directed by the chief executive.

(e) must either personally or by a parent notify the chief executive within two business days of any change of address, employment or school.

(f) must not leave, or stay out of Queensland without prior approval of the Chief Executive.

6. A conviction is not recorded.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v HBV [2019] QCA 21
PARTIES:	R v HBV (applicant)
FILE NO/S:	CA No 294 of 2018 DC No 16 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Bundaberg – Date of Sentence: 19 October 2018 (Clare SC DCJ)
DELIVERED ON:	Date of Orders: 7 December 2018 Date of Publication of Reasons: 19 February 2019
DELIVERED AT:	Brisbane
HEARING DATE:	7 December 2018
JUDGES:	Sofronoff P and Philippides JA and Davis J
ORDERS:	Date of Orders: 7 December 2018 1. Leave to appeal granted. 2. Appeal allowed. 3. The sentence of detention of nine months is confirmed. 4. The detention order be immediately suspended and that the applicant be immediately released from detention upon a conditional release order for a period of three months. 5. The requirements of the conditional release order are that the applicant: (a) must participate as directed by the Chief Executive of Youth Justice Services in the conditional release program. (b) must abstain from violation of the law during the period of this order. (c) must comply with every reasonable direction of the chief executive. (d) must report and receive visits as directed by the chief executive. (e) must either personally or by a parent notify the chief executive within two business days of any change of address, employment or school. (f) must not leave, or stay out of Queensland without prior approval of the Chief Executive. 6. A conviction is not recorded.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was a juvenile – where the applicant was convicted of one count of armed robbery with actual violence committed in company and sentenced to nine months detention – whether the trial judge erred by considering irrelevant matters – whether the sentence was manifestly excessive Youth Justice Act 1992 (Qld) Fardon v Attorney-General(Qld) (2004) 223 CLR 575; [2004] HCA 46, cited R v SCU[2017] QCA 198, cited Veen v The Queen[No 2] (1988) 164 CLR 465; [1988] HCA 14, cited
COUNSEL:	P Wilson for the applicant C N Marco for the respondent
SOLICITORS:	Howden Saggers for the applicant Director of Public Prosecutions (Queensland) for the respondent