R v J - [2002] QCA 227

[2002] QCA 227

COURT OF APPEAL

DAVIES JA
WILLIAMS JA
JERRARD JA

CA No 116 of 2002

THE QUEEN

BRISBANE

..DATE 24/06/2002

JUDGMENT

DAVIES JA: I shall ask Justice Williams to deliver his reasons first.

WILLIAMS JA: The applicant pleaded guilty on the 18th of March 2002 to the offence that on the 2nd of February 2002 he entered a dwelling house in the night time with intent to commit an indictable offence therein.

It was of particular relevance when it came to the question of sentence that, having been born on 4 March 1987, the applicant was 14 years of age when the offence was committed and 15 years when he stood for sentence.

He had, when aged about 10, received a warning with respect to a somewhat similar incident, but this was the first occasion on which he had been before the Court.

The circumstances of the commission of the offence are somewhat unusual. He was present at a party in a block of units and some of the partygoers had apparently spilled out into the common area of that building.

The complainant was the occupier of a neighbouring unit. He asked the group of partygoers to move on and be quiet. He then returned to his unit. Subsequently, he heard a noise and observed the applicant in his unit with a bottle of rum and Coke in his hands.

The applicant said that he was "looking for Jennifer". The complainant took the bottle from the applicant and asked him to leave, indicating that he would call the police. The applicant responded by raising his fists and inviting a fight. He also said, "Go ahead. I'm 14 and you're breaking up a party."

The applicant left the building. The police were contacted, and the applicant was subsequently located a short distance away with a group of juveniles. There was, again, liquor found in the possession of that group.

It appears that after his apprehension, the applicant, accompanied by his mother, sought to contact the complainant to apologise for the conduct in question, but the complainant was not able to be located on that occasion.

The fact that his mother went with him on that occasion demonstrates that he does have family support. It appears that he is a competent student at school.

It was in those circumstances that the learned sentencing Judge placed him on probation for a period of two years and ordered that he serve 100 hours community service.

In other words, the learned sentencing Judge combined a reasonably lengthy period of probation with a significant amount of community service. Because an appeal against the sentence was recommended, the applicant has not yet been requested by the authorities to perform any community service.

The learned sentencing Judge in the course of his sentencing remarks referred to the involvement of alcohol in the commission of the offence, and to the fact that the applicant had a previous warning with respect to a reasonably similar incident.

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 J

Details

AGLC: R v J [2002] QCA 227
Case: [2002] QCA 227
Decision Date: 24/06/2002

CaseChat Overview and Summary

In the Court of Appeal, the matter of R v J was heard and determined by Davies JA, Williams JA and Jerrard J. The applicant had pleaded guilty to breaking and entering a dwelling house with intent to commit an indictable offence. The offence was committed when the applicant was 14 years old, and he was 15 when he was sentenced. This was the first time the applicant had been before the court, although he had received a warning for a similar incident when he was younger. The applicant entered the complainant's unit during a party and was found with a bottle of rum and Coke in his hands. The complainant asked the applicant to leave, and when the applicant responded by raising his fists, the complainant called the police. The applicant was apprehended shortly thereafter. The learned sentencing judge imposed a two-year probation period and 100 hours of community service. The applicant's counsel argued that the combination of probation and community service made the sentence manifestly excessive.

The legal issues before the court were whether the sentence imposed was manifestly excessive and, if so, whether leave to appeal should be granted and the appeal allowed. The court noted that the applicant's age, family support, and previous warning were relevant factors to consider when determining the appropriate sentence. The court also considered the nature of the offence and the involvement of alcohol. The court found that the two-year probation period was an adequate penalty, but the addition of community service made the overall sentence manifestly excessive. The court concluded that leave to appeal should be granted, the appeal allowed, and the sentence varied by deleting the reference to community service.

In summary, the Court of Appeal allowed the applicant's appeal against sentence and varied the sentence by deleting the reference to community service. The court found that the two-year probation period was an adequate penalty, but the addition of community service made the overall sentence manifestly excessive. The court considered the applicant's age, family support, previous warning, nature of the offence, and involvement of alcohol when determining the appropriate sentence. The final orders were as indicated by Justice Williams.

Orders