R v Hy - [2005] QCA 163

SUPREME COURT OF QUEENSLAND

CITATION:

R v HY [2005] QCA 163

PARTIES:

R
v
HY
(applicant/appellant)

FILE NO/S:

CA No 56 of 2005
DC No 3 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maryborough

DELIVERED EX TEMPORE ON:

13 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

13 May 2005

JUDGES:

Jerrard JA, Muir and Wilson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   Application for leave to appeal against sentence granted

2.   Appeal allowed

3.   Set aside sentence of 18 months probation and substitute a sentence of six months probation

CATCHWORDS:

APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – conviction for receiving stolen goods – appellant already subject to probation order for prior conviction at time of sentence – prior probation period almost completed at time of sentence - whether total probation period manifestly excessive – consideration of totality principle and of youth

Juvenile Justice Act 1992 (Qld), s 115(1), 150(1)(i), 175

COUNSEL:

T Moynihan for the applicant/appellant
C W Heaton for the respondent

SOLICITORS:

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

WILSON J: When he was aged 16 years, the applicant committed the offence of receiving, to which he subsequently pleaded guilty. The offence was committed on a date unknown between 19 May and 25 June 2004.

On 17 February 2005, he was sentenced under the Juvenile Justice Act 1992 (Qld), to 18 months' probation. No conviction was recorded.

At the time of sentence, he was already subject to a 12 months probation order which had three months still to run. Thus the effect of the new sentence was that he would have to spend a total of 27 months on probation.

The applicant seeks leave to appeal against the sentence of 18 months probation on the grounds that it was beyond the appropriate range for the offence, and that the entire sentence offends the totality principle.

Upon the filing of the application for leave to appeal, the sentence imposed on 17 February 2005 was automatically stayed pursuant to section 115(1) of the Juvenile Justice Act.

On 22 June 2004, police executed a search warrant on the residence occupied by the applicant at Hervey Bay. They found a glass smoking pipe and a tongue stud in his bedroom. He readily admitted that some friends had come to his house with a bag of pipes they had stolen from a shop, and that he had received one of the pipes from them.

The shop also sells jewellery, and after the friends had left, the applicant had found the tongue stud and decided to keep it. It had also been stolen from the shop.

As the sentencing Judge observed, receiving is a serious offence, but there was no suggestion…

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 Hy

Details

AGLC: R v Hy [2005] QCA 163
Case: [2005] QCA 163
Decision Date: 13 May 2005

CaseChat Overview and Summary

The appeal against sentence was heard in the Supreme Court of Queensland. The appellant, Hy, had been convicted of receiving stolen goods. This was not his first offence; he was already under a probation order for a prior conviction at the time of the new sentence. The probation period for the earlier offence was nearly complete at the time of the current conviction, leading to the current sentence of 18 months probation. The appellant sought to appeal the sentence, arguing it was manifestly excessive considering the totality principle and his youth.

The central legal issue before the court was whether the cumulative probation period, including the new sentence, was manifestly excessive. The court considered the principle of totality, which requires that the totality of punishment for multiple offences should not be disproportionate. Additionally, the court had to weigh the appellant's youth and the almost completed probation period from the prior conviction. The court had to balance these factors to determine if the sentence was appropriate or if a reduction was warranted.

The court determined that the cumulative probation period was indeed manifestly excessive. It noted the principle of totality and the appellant's youth, concluding that the sentence did not appropriately reflect these considerations. The court found that the original sentence was disproportionate in light of these factors. Accordingly, the court allowed the appeal and reduced the sentence to six months probation. The reasoning was grounded in the need for proportionality and the importance of considering the totality of circumstances, including the appellant's age and the near completion of his prior probation.

The final orders of the court were that leave to appeal against sentence was granted, the appeal was allowed, and the original sentence of 18 months probation was set aside and replaced with a sentence of six months probation. This decision underscored the importance of proportionality in sentencing, particularly when considering cumulative penalties and the mitigating factor of youth.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed

3. Set aside sentence of 18 months probation and substitute a sentence of six months probation

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 HY [2005] QCA 163
PARTIES:	R v HY (applicant/appellant)
FILE NO/S:	CA No 56 of 2005 DC No 3 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maryborough
DELIVERED EX TEMPORE ON:	13 May 2005
DELIVERED AT:	Brisbane
HEARING DATE:	13 May 2005
JUDGES:	Jerrard JA, Muir and Wilson JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal against sentence granted 2. Appeal allowed 3. Set aside sentence of 18 months probation and substitute a sentence of six months probation
CATCHWORDS:	APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – conviction for receiving stolen goods – appellant already subject to probation order for prior conviction at time of sentence – prior probation period almost completed at time of sentence - whether total probation period manifestly excessive – consideration of totality principle and of youth Juvenile Justice Act 1992 (Qld), s 115(1), 150(1)(i), 175
COUNSEL:	T Moynihan for the applicant/appellant C W Heaton for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent