R v JL; R v Al - [2004] QCA 188

SUPREME COURT OF QUEENSLAND

CITATION:

R v JL; R v AL [2004] QCA 188

PARTIES:

R
v
JL
(applicant)

R
v
AL
(applicant)

FILE NO/S:

CA No 87 of 2004
CA No 96 of 2004
DC No 31 of 2004
DC No 89 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Applications

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

2 June 2004

DELIVERED AT:

Townsville

HEARING DATE:

1 June 2004

JUDGES:

Williams JA and Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

In CA No 87 of 2004:
1. Grant the application for leave to appeal against
sentence
2. Allow the appeal
3. Substitute for the order of three years detention to be served as a period of imprisonment, a sentence of two years detention ordered to be served as a period of imprisonment with an order that he be released after serving one half of that period
In CA No 96 of 2004:
1. Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – APPEAL AGAINST SENTENCE – PARTICULAR OFFENCES – ROBBERY – whether trial judge failed to take unto account certain factors – where juvenile and adult co-offenders were sentenced to 3 years detention and 4 years imprisonment respectively – where both co-offenders had past criminal histories – whether trial judge failed to differentiate between co-offenders – whether sentences were manifestly excessive

R v Campbell [1997] QCA 314; CA No 287 of 1997, 29 August 1997, considered

COUNSEL:

A W Moynihan for the applicants
V P Keegan for the respondent

SOLICITORS:

Legal Aid Queensland for the applicants
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: I agree with the reasons of Cullinane J and the orders proposed.

CULLINANE J: The applicants, who are cousins, seek leave to appeal against sentences imposed upon them in the District Court at Townsville on 24 March 2004.

The applicant, AL was born on 22 April 1982. He was convicted of robbery in company with personal violence after trial on 23 March 2004.

The applicant, JL who was born on 25 February 1986 pleaded guilty to this offence on 2 Feb 2004.

AL was sentenced to four years imprisonment and at the same time was dealt with for an offence of burglary to which he had pleaded guilty. He had already served some 180 days pre-sentence custody.

JL was sentenced to three years in detention with 72 days pre-sentence custody declared. An order was made at his request that the detention be served as imprisonment. This order was made pursuant to s.270(4) of the Juvenile Justice Act.

AL had a criminal history which involved mainly vagrancy offences. He was on bail at the time of the commission of the robbery for offences of unlawfully using a motor vehicle, entering premises with intent to commit an indictable offence and an offence under the

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.

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Details

Case: [2004] QCA 188
Decision Date: 2 June 2004

CaseChat Overview and Summary

The applicants, JL and Al, appealed against their sentences in relation to their respective involvement in a robbery. The Court of Appeal heard the appeals, with JL's appeal allowed and Al's appeal dismissed. The trial judge had sentenced JL to three years detention and Al to four years imprisonment. The applicants' primary contention was that the trial judge had failed to take into account certain factors in the sentencing process. Both applicants had prior criminal records and, as co-offenders, the applicants argued that the trial judge did not differentiate adequately between their respective roles in the offence and the sentencing outcomes.

The court considered whether the trial judge had failed to take into account certain factors in sentencing, and whether the sentences were manifestly excessive. The court found that the trial judge had not adequately differentiated between the roles of the juvenile offender, JL, and the adult offender, Al, in the offence. The court noted that JL, being a juvenile, should have been afforded greater leniency in sentencing, and that the trial judge had not sufficiently considered the differences in their respective roles and backgrounds. The court also considered that the sentences, particularly for JL, were manifestly excessive given the circumstances of the case.

Accordingly, the Court of Appeal allowed the appeal in relation to JL and substituted the sentence of three years detention with a sentence of two years detention to be served as a period of imprisonment, with an order that JL be released after serving half of that period. The appeal in relation to Al was dismissed, and the original sentence of four years imprisonment was upheld.

Orders

Orders of the court

In CA No 87 of 2004:

1. Grant the application for leave to appeal against

sentence

2. Allow the appeal

3. Substitute for the order of three years detention to be served as a period of imprisonment, a sentence of two years detention ordered to be served as a period of imprisonment with an order that he be released after serving one half of that period

In CA No 96 of 2004:

1. Application for leave to appeal against sentence refused

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 JL; R v AL [2004] QCA 188
PARTIES:	R v JL (applicant) R v AL (applicant)
FILE NO/S:	CA No 87 of 2004 CA No 96 of 2004 DC No 31 of 2004 DC No 89 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Applications
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	2 June 2004
DELIVERED AT:	Townsville
HEARING DATE:	1 June 2004
JUDGES:	Williams JA and Cullinane and Jones JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	In CA No 87 of 2004: 1. Grant the application for leave to appeal against sentence 2. Allow the appeal 3. Substitute for the order of three years detention to be served as a period of imprisonment, a sentence of two years detention ordered to be served as a period of imprisonment with an order that he be released after serving one half of that period In CA No 96 of 2004: 1. Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – APPEAL AGAINST SENTENCE – PARTICULAR OFFENCES – ROBBERY – whether trial judge failed to take unto account certain factors – where juvenile and adult co-offenders were sentenced to 3 years detention and 4 years imprisonment respectively – where both co-offenders had past criminal histories – whether trial judge failed to differentiate between co-offenders – whether sentences were manifestly excessive R v Campbell [1997] QCA 314; CA No 287 of 1997, 29 August 1997, considered
COUNSEL:	A W Moynihan for the applicants V P Keegan for the respondent
SOLICITORS:	Legal Aid Queensland for the applicants Director of Public Prosecutions (Queensland) for the respondent