R v KAL - [2013] QCA 317

SUPREME COURT OF QUEENSLAND

CITATION:

R v KAL [2013] QCA 317

PARTIES:

R
v
KAL
(applicant)

FILE NO/S:

CA No 112 of 2013
DC No 21 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Rockhampton

DELIVERED ON:

25 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

1 October 2013

JUDGES:

Margaret McMurdo P and Mullins and Henry JJ
Joint reasons for judgment of Mullins and Henry JJ; separate reasons of Margaret McMurdo P dissenting

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to burglary and rape – where the applicant, as a 14 year old, raped the 16 year old male complainant in his home – where the applicant was on probation at the time of the offending and had a significant criminal history although had committed no prior sexual or serious violent offences – where the applicant was convicted and sentenced to detention for four years with an order that he be released after serving 70 per cent of the period of detention – where the applicant contends that his sentence was manifestly excessive; the sentencing judge gave insufficient weight to his plea of guilty, his youth and his shockingly dysfunctional background when considering whether there were special reasons under s 227 Youth Justice Act 1992 (Qld) for ordering his release earlier than after 70 per cent of his sentence – whether sentencing judge erred – whether sentence manifestly excessive

Youth Justice Act 1992 (Qld), s 3, s 227, Schedule 1

Bugmy v The Queen (2013) 87 ALJR 1022; [2013] HCA 37, discussed
Munda v Western Australia (2013) 87 ALJR 1035; [2013] HCA 38, cited
R v A; ex parte Attorney-General[2001] QCA 542, cited
R v DAU; ex parte Attorney-General[2009] QCA 244, cited
R v IC[2012] QCA 148, cited
R v JAJ[2003] QCA 554, cited
R v PZ; ex parte Attorney-General[2005] QCA 459, considered
R v S[2003] QCA 107, cited

COUNSEL:

J R Hunter QC for the applicant (pro bono)
S J Farnden for the respondent

SOLICITORS:

No appearance for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: The applicant pleaded guilty on 6 December 2012 in the Childrens Court at Rockhampton to burglary and rape on 26 February 2012. He was an Aboriginal youth, aged 14 at the time of the offence and 15 at sentence. As a result of his age, he was sentenced under the Youth Justice Act 1992 (Qld) according to youth justice principles.[1] A presentence report was ordered and he was remanded in custody until 18 April 2013 when he was convicted and sentenced to detention for four years with an order that he be released after serving 70 per cent of that period of detention. He…

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 KAL

Details

AGLC: R v KAL [2013] QCA 317
Case: [2013] QCA 317
Decision Date: 25 October 2013

CaseChat Overview and Summary

The case of R v KAL involved the applicant, who had pleaded guilty to burglary and rape. The applicant, who was 14 years old at the time of the offence, had raped a 16-year-old male in his home. The applicant was on probation at the time of the offending and had a significant criminal history but had not committed any prior sexual or serious violent offences. The applicant was sentenced to detention for four years, with a condition that he be released after serving 70 per cent of his sentence. The applicant appealed against the sentence, arguing that it was manifestly excessive and that the sentencing judge had not given sufficient weight to his plea of guilty, his youth, and his dysfunctional background.

The primary legal issues the court needed to address were whether the sentencing judge had erred and whether the sentence was manifestly excessive. The court needed to determine if the sentencing judge had adequately considered the special reasons under section 227 of the Youth Justice Act 1992 (Qld) for ordering the applicant's release earlier than after 70 per cent of his sentence. The applicant argued that his youth, plea of guilty, and background warranted a lighter sentence.

The court found that the sentencing judge had not erred in their consideration of the special reasons for ordering an earlier release. The court concluded that the sentence was not manifestly excessive and that the sentencing judge had appropriately balanced the factors in arriving at the sentence. The court found that the sentencing judge had given sufficient weight to the applicant's plea of guilty, youth, and background. The court held that the sentence was appropriate and not manifestly excessive, and therefore, the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

Background

Background to the litigation

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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 KAL [2013] QCA 317
PARTIES:	R v KAL (applicant)
FILE NO/S:	CA No 112 of 2013 DC No 21 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Rockhampton
DELIVERED ON:	25 October 2013
DELIVERED AT:	Brisbane
HEARING DATE:	1 October 2013
JUDGES:	Margaret McMurdo P and Mullins and Henry JJ Joint reasons for judgment of Mullins and Henry JJ; separate reasons of Margaret McMurdo P dissenting
ORDER:	The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to burglary and rape – where the applicant, as a 14 year old, raped the 16 year old male complainant in his home – where the applicant was on probation at the time of the offending and had a significant criminal history although had committed no prior sexual or serious violent offences – where the applicant was convicted and sentenced to detention for four years with an order that he be released after serving 70 per cent of the period of detention – where the applicant contends that his sentence was manifestly excessive; the sentencing judge gave insufficient weight to his plea of guilty, his youth and his shockingly dysfunctional background when considering whether there were special reasons under s 227 Youth Justice Act 1992 (Qld) for ordering his release earlier than after 70 per cent of his sentence – whether sentencing judge erred – whether sentence manifestly excessive Youth Justice Act 1992 (Qld), s 3, s 227, Schedule 1 Bugmy v The Queen (2013) 87 ALJR 1022; [2013] HCA 37, discussed Munda v Western Australia (2013) 87 ALJR 1035; [2013] HCA 38, cited R v A; ex parte Attorney-General[2001] QCA 542, cited R v DAU; ex parte Attorney-General[2009] QCA 244, cited R v IC[2012] QCA 148, cited R v JAJ[2003] QCA 554, cited R v PZ; ex parte Attorney-General[2005] QCA 459, considered R v S[2003] QCA 107, cited
COUNSEL:	J R Hunter QC for the applicant (pro bono) S J Farnden for the respondent
SOLICITORS:	No appearance for the applicant Director of Public Prosecutions (Queensland) for the respondent