R v Kaz - [2022] QCA 34

SUPREME COURT OF QUEENSLAND

CITATION:

R v KAZ [2022] QCA 34

PARTIES:

R
v
KAZ
(applicant)

FILE NO/S:

CA No 194 of 2021
DC No 25 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville – Date of Sentence: 29 July 2021 (Everson DCJ)

DELIVERED ON:

15 March 2022

DELIVERED AT:

Brisbane

HEARING DATE:

16 February 2022

JUDGES:

Sofronoff P and Fraser and Bond JJA

ORDERS:

1.   Grant the application for leave to appeal.

2.   Allow the appeal.

3.   Vary the orders made by the sentencing judge by substituting “14 months” for “18 months” in the detention order for count 5.

4.   Otherwise confirm the orders made by the sentencing judge.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to all counts – where the complainant was 14 and the applicant was 13 at the time of the offences – where the applicant was sentenced for one offence of rape (count 5) under s 175(1)(g) of the Youth Justice Act1992 to 18 months detention with an order for release after serving 50 per cent – where for each of two offences of rape (counts 3 and 4) and two offences of indecent treatment of a child under 16 (counts 1 and 2), the applicant was sentenced to two years’ probation with a “Griffith condition” – where no convictions were recorded – where the sentencing judge did not take into account the effect of the combination of orders proposed by the Crown – whether the sentencing judge erred in the application of s 208 of the Youth Justice Act by failing to properly consider the suitability of other available sentences

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the sentencing judge made observations during the submissions for the Crown that the applicant had not continued to offend but had not done anything to address his propensity to offend, the applicant was a high to medium high risk sex offender, and he had not availed himself of any support to deal with that risk – whether the sentencing judge incorrectly determined that the applicant had failed to engage in activities while on bail which addressed his risk of re-offending

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the sentencing judge took into account the lack of cooperation by the applicant’s mother as a factor relevant to the question whether no sentence other than detention was appropriate in the circumstances of the case – whether the sentencing judge erred by treating as an aggravating factor the absence of consent by the applicant’s mother to the release of information to Youth Justice

Youth Justice Act1992 (Qld), s 150(1), s 150(2), s 175(1)(g), s 177, s 178, s 179, s 180, s 180A, s 200(4), s…

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 Kaz

Details

AGLC: R v Kaz [2022] QCA 34
Case: [2022] QCA 34
Decision Date: 15 March 2022

CaseChat Overview and Summary

The applicant appealed against his sentence, contending that the sentencing judge erred in failing to consider the suitability of other available sentences, incorrectly determining that he had failed to engage in activities while on bail which addressed his risk of re-offending, and treating as an aggravating factor the absence of consent by his mother to the release of information to Youth Justice. The applicant pleaded guilty to one offence of rape and three other offences involving a complainant who was 14 years old at the time of the offences, while the applicant was 13. The sentencing judge sentenced the applicant to 18 months detention for the rape offence, with an order for release after serving 50 per cent, and two years’ probation for each of the other three offences, with a “Griffith condition”.

The court was required to determine whether the sentencing judge erred in the application of section 208 of the Youth Justice Act by failing to properly consider the suitability of other available sentences. The court also needed to decide whether the sentencing judge incorrectly determined that the applicant had failed to engage in activities while on bail which addressed his risk of re-offending and whether the sentencing judge erred by treating as an aggravating factor the absence of consent by the applicant’s mother to the release of information to Youth Justice.

The court found that the sentencing judge had failed to properly consider the suitability of other available sentences and that the applicant had engaged in activities while on bail which addressed his risk of re-offending. The court also held that the sentencing judge erred by treating as an aggravating factor the absence of consent by the applicant’s mother to the release of information to Youth Justice. Consequently, the court granted the application for leave to appeal, allowed the appeal, and varied the orders made by the sentencing judge by substituting “14 months” for “18 months” in the detention order for count 5. The court otherwise confirmed the orders made by the sentencing judge.

Orders

Orders of the court

1. Grant the application for leave to appeal.

2. Allow the appeal.

3. Vary the orders made by the sentencing judge by substituting “14 months” for “18 months” in the detention order for count 5.

4. Otherwise confirm the orders made by the sentencing judge.

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 KAZ [2022] QCA 34
PARTIES:	R v KAZ (applicant)
FILE NO/S:	CA No 194 of 2021 DC No 25 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville – Date of Sentence: 29 July 2021 (Everson DCJ)
DELIVERED ON:	15 March 2022
DELIVERED AT:	Brisbane
HEARING DATE:	16 February 2022
JUDGES:	Sofronoff P and Fraser and Bond JJA
ORDERS:	1. Grant the application for leave to appeal. 2. Allow the appeal. 3. Vary the orders made by the sentencing judge by substituting “14 months” for “18 months” in the detention order for count 5. 4. Otherwise confirm the orders made by the sentencing judge.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to all counts – where the complainant was 14 and the applicant was 13 at the time of the offences – where the applicant was sentenced for one offence of rape (count 5) under s 175(1)(g) of the Youth Justice Act1992 to 18 months detention with an order for release after serving 50 per cent – where for each of two offences of rape (counts 3 and 4) and two offences of indecent treatment of a child under 16 (counts 1 and 2), the applicant was sentenced to two years’ probation with a “Griffith condition” – where no convictions were recorded – where the sentencing judge did not take into account the effect of the combination of orders proposed by the Crown – whether the sentencing judge erred in the application of s 208 of the Youth Justice Act by failing to properly consider the suitability of other available sentences CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the sentencing judge made observations during the submissions for the Crown that the applicant had not continued to offend but had not done anything to address his propensity to offend, the applicant was a high to medium high risk sex offender, and he had not availed himself of any support to deal with that risk – whether the sentencing judge incorrectly determined that the applicant had failed to engage in activities while on bail which addressed his risk of re-offending CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the sentencing judge took into account the lack of cooperation by the applicant’s mother as a factor relevant to the question whether no sentence other than detention was appropriate in the circumstances of the case – whether the sentencing judge erred by treating as an aggravating factor the absence of consent by the applicant’s mother to the release of information to Youth Justice Youth Justice Act1992 (Qld), s 150(1), s 150(2), s 175(1)(g), s 177, s 178, s 179, s 180, s 180A, s 200(4), s…