R v Houkamau - [2016] QCA 328

SUPREME COURT OF QUEENSLAND

CITATION:

R v Houkamau [2016] QCA 328

PARTIES:

R
v
HOUKAMAU, Leighton Maurice
(applicant)

FILE NO/S:

CA No 270 of 2016
DC No 180 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Toowoomba – Date of Sentence: 21 September 2016

DELIVERED ON:

9 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

29 November 2016

JUDGES:

Gotterson and Morrison and Philippides JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Leave to appeal against sentence is granted.

2.   The appeal is allowed.

3.   The sentence is varied by imposing a term of four years and four months in lieu of the term of five years imprisonment imposed on count 2.

4.   The date on which the applicant is eligible to apply for parole is 21 July 2017 (after serving approximately 20 months in total).

5. Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), 45 days is declared as time already served under the sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was convicted, on his own plea of guilty, of one count of robbery in company with violence and one count of causing grievous bodily harm – where the applicant was sentenced to four years imprisonment in respect of count 1 and five years imprisonment in respect of count 2, to be served concurrently and with a parole eligibility date set at 10 months after sentence was imposed and 20 months after the applicant was first taken into custody – where, in fixing the parole eligibility date, the sentencing judge indicated that his Honour took into account a period of approximately nine and a half months of pre-sentence custody – where only 45 days of this pre-sentence custody could be declared, and was not declared, pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) – where the sentencing judge determined that five years was an appropriate head sentence – whether the sentencing judge erred in failing to adjust the head sentence to account for the nine and a half months spent in pre-sentence custody – whether the exercise of the sentencing discretion miscarried

Penaltiesand Sentences Act 1992 (Qld), s 159A

Attorney-General (Qld) v Kanaveilomani [2015] 2 Qd R 509; [2013] QCA 404, cited
R v Anthony[2013] QCA 95, cited
R v Lappan[2015] QCA 180, cited
R v MKL[2016] QCA 249, cited
R v Neilson[2011] QCA 369, cited
R v Skedgwell [1999] 2 Qd R 97; [1998] QCA 93, cited
R v Timotl[2003] QCA 96, cited
R v Tomkins and Gunning[2001] QCA 68, cited
R v Wishart and Jenkins [1994] 2 Qd R 421; [1993] QCA 563, cited

COUNSEL:

A D Anderson (sol) for the applicant (pro bono)
G P Cash QC for the respondent

SOLICITORS:

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 Houkamau

Details

AGLC: R v Houkamau [2016] QCA 328
Case: [2016] QCA 328
Decision Date: 9 December 2016

CaseChat Overview and Summary

The applicant, Houkamau, appealed against his sentence following a guilty plea to charges of robbery in company with violence and causing grievous bodily harm. The Supreme Court of Queensland was tasked with reviewing the sentence imposed by the lower court. The primary legal issue before the court was whether the sentencing judge erred in not adjusting the head sentence to account for the period of pre-sentence custody that exceeded the amount that could be declared under the Penalties and Sentences Act 1992 (Qld). The court also needed to determine if the sentencing exercise miscarried due to this alleged error.

The court held that the sentencing judge indeed erred by not adjusting the head sentence to account for the full period of pre-sentence custody. The sentencing judge had only accounted for 45 days of the nine and a half months of pre-sentence custody, despite the remaining time being eligible for declaration under s 159A of the Penalties and Sentences Act 1992 (Qld). This oversight led the court to conclude that the exercise of sentencing discretion miscarried. Consequently, the appeal was allowed, and the sentence was varied. The court imposed a term of four years and four months in lieu of the five-year term for count 2. The new parole eligibility date was set for 21 July 2017, after the applicant had served approximately 20 months in total. Additionally, 45 days were declared as time already served under the sentence in accordance with s 159A of the Penalties and Sentences Act 1992 (Qld).

Orders

Orders of the court

1. Leave to appeal against sentence is granted.

2. The appeal is allowed.

3. The sentence is varied by imposing a term of four years and four months in lieu of the term of five years imprisonment imposed on count 2.

4. The date on which the applicant is eligible to apply for parole is 21 July 2017 (after serving approximately 20 months in total).

5. Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), 45 days is declared as time already served under the sentence.

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 Houkamau [2016] QCA 328
PARTIES:	R v HOUKAMAU, Leighton Maurice (applicant)
FILE NO/S:	CA No 270 of 2016 DC No 180 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Toowoomba – Date of Sentence: 21 September 2016
DELIVERED ON:	9 December 2016
DELIVERED AT:	Brisbane
HEARING DATE:	29 November 2016
JUDGES:	Gotterson and Morrison and Philippides JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Leave to appeal against sentence is granted. 2. The appeal is allowed. 3. The sentence is varied by imposing a term of four years and four months in lieu of the term of five years imprisonment imposed on count 2. 4. The date on which the applicant is eligible to apply for parole is 21 July 2017 (after serving approximately 20 months in total). 5. Pursuant to s 159A of the *Penalties and Sentences Act* 1992 (Qld), 45 days is declared as time already served under the sentence.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was convicted, on his own plea of guilty, of one count of robbery in company with violence and one count of causing grievous bodily harm – where the applicant was sentenced to four years imprisonment in respect of count 1 and five years imprisonment in respect of count 2, to be served concurrently and with a parole eligibility date set at 10 months after sentence was imposed and 20 months after the applicant was first taken into custody – where, in fixing the parole eligibility date, the sentencing judge indicated that his Honour took into account a period of approximately nine and a half months of pre-sentence custody – where only 45 days of this pre-sentence custody could be declared, and was not declared, pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) – where the sentencing judge determined that five years was an appropriate head sentence – whether the sentencing judge erred in failing to adjust the head sentence to account for the nine and a half months spent in pre-sentence custody – whether the exercise of the sentencing discretion miscarried Penaltiesand Sentences Act 1992 (Qld), s 159A Attorney-General (Qld) v Kanaveilomani [2015] 2 Qd R 509; [2013] QCA 404, cited R v Anthony[2013] QCA 95, cited R v Lappan[2015] QCA 180, cited R v MKL[2016] QCA 249, cited R v Neilson[2011] QCA 369, cited R v Skedgwell [1999] 2 Qd R 97; [1998] QCA 93, cited R v Timotl[2003] QCA 96, cited R v Tomkins and Gunning[2001] QCA 68, cited R v Wishart and Jenkins [1994] 2 Qd R 421; [1993] QCA 563, cited
COUNSEL:	A D Anderson (sol) for the applicant (pro bono) G P Cash QC for the respondent
SOLICITORS: