R v Kane; Ex parte

Case [2022] QCA 242

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kane; Ex parte Attorney-General (Qld) [2022] QCA 242

PARTIES:

R
v
KANE, Joshawa Eric Lyle
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 95 of 2022
DC No 423 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Attorney-General (Qld)

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 19 April 2022 (Williamson KC DCJ)

DELIVERED ON:

Date of Orders: 21 November 2022
Date of Publication of Reasons: 2 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2022

JUDGES:

Mullins P and Dalton and Flanagan JJA

ORDERS:

Date of Orders: 21 November 2022

1.   Appeal allowed.

2.   The sentence of the primary judge is varied by substituting three years’ imprisonment for 18 months’ imprisonment.

3.   All other orders of the primary judge are confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent pleaded guilty to one count of sexual assault – where the respondent was sentenced to 18 months’ imprisonment suspended after serving 282 days in custody for an operational period of three years and a presentence custody declaration was made in respect of the 282 days – where the Attorney-General appeals against the sentence – where the prosecutor before the primary judge submitted a head sentence of 18 months’ imprisonment was appropriate and the focus of the submissions before the primary judge was on the structure of the sentence – where the extent and nature of the assault made the offending significantly more serious than the offending in the comparable authorities relied on by the prosecutor before the primary judge – where the imposition of a sentence by the primary judge that accorded with the submissions made by the prosecutor does not preclude a successful appeal where those submissions caused an error of principle to be made – whether the primary judge erred in failing to have proper regard to the serious circumstances of the offence in relation to the maximum penalty – whether the sentence imposed is manifestly inadequate

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited
Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, cited
Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10, cited
R v Bradford[2007] QCA 293, cited
R v Brockfield[1993] QCA 348, cited
R v CCU[2022] QCA 92, cited
R v D [1996] 1 Qd R 363; [1995] QCA 329, cited
R v Demmery[2005] QCA 462, cited
R v Hopper; Ex parte Attorney-General (Qld) [2015] 2 Qd R 56; [2014] QCA 108, cited
R v HX[2005] QCA 91, cited
R v KU; Ex parte Attorney-General (No 2) [2011] 1 Qd R 439; [2008] QCA 154, cited
R v Murray[2005]…

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AGLC
R v Kane; Ex parte [2022] QCA 242
Case
[2022] QCA 242
Decision Date

CaseChat Overview and Summary

In the matter of R v Kane; Ex parte, the respondent had pleaded guilty to a count of sexual assault and was sentenced to 18 months’ imprisonment, suspended after serving 282 days in custody for an operational period of three years, with a presentence custody declaration made in respect of the 282 days. The Attorney-General appealed against the sentence, arguing that it was manifestly inadequate. The primary judge had considered the prosecutor's submissions on the structure of the sentence but did not adequately consider the serious nature of the offence.

The court was required to decide whether the primary judge erred in failing to have proper regard to the serious circumstances of the offence in relation to the maximum penalty and whether the sentence imposed was manifestly inadequate. The court needed to weigh the prosecutor's submissions against the actual gravity of the offence and the maximum penalty available.

The court found that the prosecutor's submissions did not account for the significant seriousness of the assault compared to the cases relied on by the prosecutor. The imposition of a sentence that aligned with the prosecutor's submissions did not preclude a successful appeal if those submissions caused an error of principle. The court held that the primary judge had indeed erred in failing to properly consider the serious nature of the offence and the maximum penalty, leading to a manifestly inadequate sentence. The appeal was allowed, and the sentence was varied to three years' imprisonment.

The court confirmed all other orders of the primary judge, including the presentence custody declaration. The final orders were made on 21 November 2022, allowing the appeal, varying the sentence, and confirming all other orders of the primary judge.

Orders

Orders of the court

Date of Orders: 21 November 2022

1. Appeal allowed.

2. The sentence of the primary judge is varied by substituting three years’ imprisonment for 18 months’ imprisonment.

3. All other orders of the primary judge are confirmed.

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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