R v K ex parte Attorney-General - [1998] QCA 284

[1998] QCA 284

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

[R. v. K] C.A. No. 185 of 1998

THE QUEEN

K Appellant

[R. v. K; ex parte A-G] C.A. No. 189 of 1998

THE QUEEN

v.

K Respondent

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

Appellant

McMurdo P.
McPherson J.A.
Ambrose J.

Judgment delivered 22 September 1998

Separate reasons for judgment of each member of the Court; each concurring on appeal against conviction; Ambrose J. partially dissenting on appeal against sentence.

APPEAL AGAINST CONVICTION DISMISSED.

ATTORNEY-GENERAL’S APPEAL AGAINST SENTENCES IMPOSED IN THE SUPREME COURT AT CAIRNS ON 9 JUNE 1998 ALLOWED.

ORDER THAT, IN RESPECT OF EACH OF THE OFFENCES IN COUNTS 1 AND 2 OF THE INDICTMENT, THE APPELLANT SERVE A PERIOD OF DETENTION OF 2 YEARS AND IN RESPECT OF COUNT 3 HE SERVE A PERIOD OF DETENTION OF 6 MONTHS, ALL SUCH PERIODS TO BE SERVED CONCURRENTLY.

ORDER THAT THE PERIODS OF DETENTION SPECIFIED ABOVE BE CALCULATED FROM AND COMMENCE ON AND FROM THE DATE WHEN THE APPELLANT IS TAKEN INTO CUSTODY PURSUANT TO THE SENTENCES NOW IMPOSED, DUE ALLOWANCE BEING MADE BY WAY OF REDUCTION FOR:

(A)THE PERIOD OF DETENTION OF THREE MONTHS ALREADY SERVED BY THE APPELLANT; AND
(B)THE PERIOD OF 5 DAYS PRE-SENTENCE CUSTODY, BUT IN THIS INSTANCE ONLY IN SO FAR AS THE SAME HAS NOT ALREADY BEEN TAKEN INTO ACCOUNT IN THE PERIOD OF THREE MONTHS DETENTION SERVED BY HIM.

NO CONVICTION RECORDED.

CATCHWORDS: CRIMINAL - Appeal against conviction - appeal against sentence - manslaughter - grievous bodily harm - negligent act causing bodily harm - whether identification evidence led to unsafe and unsatisfactory conviction - admissions - whether sentence manifestly inadequate - juvenile.
Juvenile Justice Act 1992
Penalties and Sentences Act 1992
Pitkin v. The Queen (1995) 69 A.L.J.R. 612
Alexander v. The Queen (1981) 145 C.L.R. 395
Van Den Bemd v. The Queen (1994) 179 C.L.R. 137
Callaghan v. The Queen (1952) 87 C.L.R. 115

Counsel:Mr B. Deveraux for the appellant in C.A. No. 185 of 1998 /respondent in C.A. No. 189 of 1998
Mr P. Rutledge for the respondent in C.A. No. 185 of 1998 / appellant in C.A. No. 189 of 1998

Solicitors:Legal Aid Queensland for the appellant in C.A. No.185 of 1998 /respondent in C.A. No. 189 of 1998
Director of Public Prosecutions (Queensland) for the respondent in C.A. No. 185 of 1998
Crown Law for the appellant in C.A. No. 189 of 1998

Hearing Date: 2 September 1998

REASONS FOR JUDGMENT - McMURDO. P.

Judgment delivered 22 September 1998

I agree with the reasons of McPherson J.A. and Ambrose J. for dismissing the appeal against conviction.
The facts of the case are fully set out in the judgment of Ambrose J.
As to the Attorney-General’s appeal against sentence, I agree with the reasons and with the proposed orders of McPherson J.A. I would only add that the appellant, on his release from custody after serving 70 percent of the two year period of detention,…

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: [1998] QCA 284
Decision Date: 22 September 1998

CaseChat Overview and Summary

The case of R v K ex parte Attorney-General involved an appeal against the conviction and sentence of a juvenile who had been found guilty of manslaughter, grievous bodily harm, and a negligent act causing bodily harm. The appellant had placed a rock on a highway, resulting in a car collision that led to the death of one person and injuries to several others. The primary legal issues were whether the identification evidence led to an unsafe and unsatisfactory conviction and whether the sentence imposed was manifestly inadequate. The Court of Appeal dismissed the appeal against conviction, finding the identification evidence reliable and the conviction safe. However, the Court allowed the appeal against the sentence, deeming the original sentence of three months detention and a three-year probation order manifestly inadequate. The Court ordered that the appellant serve a period of two years detention for the manslaughter and grievous bodily harm charges, and six months detention for the negligent act, all to be served concurrently. The Court emphasized the need for a sentence that reflects the seriousness of the offences and serves as a deterrent against similar conduct by others.

Orders