R v Kengike - [2013] QCA 40

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kengike [2013] QCA 40

PARTIES:

R
v
KENGIKE, Bill
(applicant)

FILE NO/S:

CA No 257 of 2012
DC No 176 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

12 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

28 February 2013

JUDGES:

Muir and Fraser JJA and Martin J
Separate reasons for judgment of each member of the Court, each concurring as to the order made.

ORDER:

Application for leave to appeal against sentence 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 one count of armed robbery in company with personal violence – where the applicant’s offending breached the terms of a suspended sentence – where the applicant had an extensive criminal history – where the applicant was sentenced to six and a half years imprisonment to be served cumulatively upon sentences being served for earlier offending – where the applicant contends that the sentence offends that totality principle – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 156A

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, distinguished
R v Brown [2000] QCA 402, considered
R v Lund [2000] QCA 85, considered
R v Main and Fauid [2012] QCA 80. considered

COUNSEL:

R East for the applicant
S P Vasta for the respondent

SOLICITORS:

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

MUIR JA: The applicant was 27 years of age when convicted on his plea of guilty in the District Court on 3 September 2012 of armed robbery in company with personal violence on 10 December 2011. He applies for leave to appeal against his sentence of six and a half years with a fixed parole eligibility date of 15 April 2015.

The applicant’s offending breached the terms of a suspended sentence of six months imprisonment imposed in the Beenleigh Magistrates Court on 28 October 2011 for the unlawful use of a motor vehicle on 1 October 2011. It was ordered that the six month term be served concurrently with the six and a half year term.

The applicant had a bad criminal history which commenced in December 1998. He was first sentenced to a term of detention on 16 July 2003 for an offence committed as a minor.

On 17 November 2006, he was sentenced to two years imprisonment with immediate release on parole for two robberies with actual violence when armed and in company. He had already spent 215 days in pre-sentence custody which was not declarable but which was taken into account.

On 6 January 2007, he committed another robbery with actual violence when armed and in company and was sentenced on 17 October 2007 to four years imprisonment. Eligibility for parole was fixed at 4 July 2009. The offence…

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 Kengike

Details

AGLC: R v Kengike [2013] QCA 40
Case: [2013] QCA 40
Decision Date: 12 March 2013

CaseChat Overview and Summary

The case of R v Kengike involves an appeal against a sentence imposed by the Court of Appeal. The applicant, who had pleaded guilty to armed robbery in company with personal violence, argued that the sentence was manifestly excessive. The applicant's criminal history was extensive, and the offence occurred while he was serving a suspended sentence. The Court of Appeal sentenced him to six and a half years imprisonment, to be served cumulatively with his prior sentences. The applicant claimed that the sentence contravened the totality principle, which dictates that the aggregate of all sentences should not be excessive.

The legal issues before the court included whether the sentence was manifestly excessive and whether the Court of Appeal had erred in failing to consider the totality principle. The applicant argued that the sentence was disproportionate to the offence and his criminal history, and that the court had not adequately considered the need to avoid excessive cumulative sentences. The Crown contended that the sentence was appropriate given the seriousness of the offence and the applicant’s criminal history.

The court found that the sentence was not manifestly excessive, as it was within the range of sentences that could be imposed for such a serious offence. The court held that the totality principle does not necessarily require that the cumulative sentence be reduced to the lowest possible level but rather that it should not be excessive in light of the totality of the offender’s criminal conduct. The court found that the sentence was proportionate to the gravity of the offence and the applicant’s criminal history. Consequently, the court dismissed the appeal against sentence.

The court refused the applicant leave to appeal against the sentence. The court held that the sentence imposed was not manifestly excessive and that the Court of Appeal had appropriately considered the totality principle. The appeal was dismissed, and the original sentence stands.

Orders

Orders of the court

Application for leave to appeal against sentence 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 Kengike [2013] QCA 40
PARTIES:	R v KENGIKE, Bill (applicant)
FILE NO/S:	CA No 257 of 2012 DC No 176 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	12 March 2013
DELIVERED AT:	Brisbane
HEARING DATE:	28 February 2013
JUDGES:	Muir and Fraser JJA and Martin J Separate reasons for judgment of each member of the Court, each concurring as to the order made.
ORDER:	Application for leave to appeal against sentence 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 one count of armed robbery in company with personal violence – where the applicant’s offending breached the terms of a suspended sentence – where the applicant had an extensive criminal history – where the applicant was sentenced to six and a half years imprisonment to be served cumulatively upon sentences being served for earlier offending – where the applicant contends that the sentence offends that totality principle – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 156A Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, distinguished R v Brown [2000] QCA 402, considered R v Lund [2000] QCA 85, considered R v Main and Fauid [2012] QCA 80. considered
COUNSEL:	R East for the applicant S P Vasta for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent