R v Kraaz - [2006] QCA 520

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kraaz [2006] QCA 520

PARTIES:

R
v
KRAAZ, Kayleen Maree
(applicant/appellant)

FILE NO/S:

CA No 72 of 2006

DC No 5 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Bowen

DELIVERED ON:

8 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

6 October 2006

JUDGES:

Keane JA, Mackenzie and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

1.    Application allowed

2.    The applicant have leave to reopen the sentencing       proceedings

3.    The sentence of four years imprisonment be set aside       and, in lieu thereof, a sentence of three years and       10 months be imposed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS – WHEN REFUSED – PARTICULAR OFFENCES – PROPERTY OFFENCES applicant convicted of offence of entering a dwelling to commit an indictable offence in company with another – sentenced to four years imprisonment with recommendation for post-prison community based release after serving 18 months – applicant contends that sentence imposed did not reflect the level of her offending compared to her co‑offenders – applicant instigated the commission of the offence – whether sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – applicant served thirty days pre-sentence custody for a charge which was later dropped – charge was dropped after the learned sentencing judge had passed sentence therefore no allowance was made – respondent does not object to the Court reducing sentence to take into account pre-sentence custody – whether time served in pre-sentence custody for unrelated charges should be considered by the Court

R v Feher [2001] QCA 449; CA No 132 of 2001, 17 October 2001, considered
R v Granato [2006] QCA 25; CA No 285 of 2005, 10 February 2006, considered
R v Mullins and Kluck [2000] QCA 150; CA Nos 387 of 1999, 388 of 1999, 2 May 2000, considered
R v Phillips; ex parte A-G [2001] QCA 544; CA No 229 of 2001, 28 November 2001, considered

COUNSEL:

P E Smith for the applicant
M J Copley for the respondent

SOLICITORS:

Gilshenan & Luton for the applicant

Director of Public Prosecutions (Qld) for the respondent

KEANE JA: I agree with the reasons of Jones J and with the orders proposed by his Honour.

MACKENZIE J: I agree that leave to appeal against sentence should be allowed for the reasons given by Jones J, and that the orders proposed by him be made.

JONES J: The applicant was indicted on a charge of burglary whilst armed and in company with another. This charge allowed for alternate verdicts on five lesser offences. The applicant was acquitted by the jury of the principal offence and four of the…

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 Kraaz

Details

AGLC: R v Kraaz [2006] QCA 520
Case: [2006] QCA 520
Decision Date: 8 December 2006

CaseChat Overview and Summary

In the case of R v Kraaz, the applicant appealed against her sentence for entering a dwelling to commit an indictable offence in the company of others. The applicant had been sentenced to four years imprisonment with a recommendation for post-prison community-based release after serving 18 months. The applicant argued that her sentence did not reflect the level of her involvement compared to her co-offenders and that it was manifestly excessive. Additionally, the applicant had served thirty days in pre-sentence custody for a charge that was later dropped, and the respondent did not object to the Court reducing the sentence to account for this time.

The legal issues before the Court included whether the sentence imposed was manifestly excessive and whether time served in pre-sentence custody for unrelated charges should be considered. The Court needed to determine if the sentence was disproportionately harsh and whether the applicant's pre-sentence custody for unrelated charges should be taken into account when reducing the sentence.

The Court found that the applicant's sentence was manifestly excessive given her level of involvement and the fact that her co-offenders received lesser sentences. Furthermore, the Court found that the applicant's pre-sentence custody for unrelated charges should be considered when reducing the sentence. As a result, the Court allowed the application, granted the applicant leave to reopen the sentencing proceedings, set aside the original sentence, and imposed a new sentence of three years and 10 months imprisonment.

Orders

Orders of the court

1. Application allowed

2. The applicant have leave to reopen the sentencing proceedings

3. The sentence of four years imprisonment be set aside and, in lieu thereof, a sentence of three years and 10 months be imposed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Kraaz [2006] QCA 520
PARTIES:	R v KRAAZ, Kayleen Maree (applicant/appellant)
FILE NO/S:	CA No 72 of 2006 DC No 5 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Bowen
DELIVERED ON:	8 December 2006
DELIVERED AT:	Brisbane
HEARING DATE:	6 October 2006
JUDGES:	Keane JA, Mackenzie and Jones JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	1. Application allowed 2. The applicant have leave to reopen the sentencing proceedings 3. The sentence of four years imprisonment be set aside and, in lieu thereof, a sentence of three years and 10 months be imposed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS – WHEN REFUSED – PARTICULAR OFFENCES – PROPERTY OFFENCES applicant convicted of offence of entering a dwelling to commit an indictable offence in company with another – sentenced to four years imprisonment with recommendation for post-prison community based release after serving 18 months – applicant contends that sentence imposed did not reflect the level of her offending compared to her co‑offenders – applicant instigated the commission of the offence – whether sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – applicant served thirty days pre-sentence custody for a charge which was later dropped – charge was dropped after the learned sentencing judge had passed sentence therefore no allowance was made – respondent does not object to the Court reducing sentence to take into account pre-sentence custody – whether time served in pre-sentence custody for unrelated charges should be considered by the Court R v Feher [2001] QCA 449; CA No 132 of 2001, 17 October 2001, considered R v Granato [2006] QCA 25; CA No 285 of 2005, 10 February 2006, considered R v Mullins and Kluck [2000] QCA 150; CA Nos 387 of 1999, 388 of 1999, 2 May 2000, considered R v Phillips; ex parte A-G [2001] QCA 544; CA No 229 of 2001, 28 November 2001, considered
COUNSEL:	P E Smith for the applicant M J Copley for the respondent
SOLICITORS:	Gilshenan & Luton for the applicant Director of Public Prosecutions (Qld) for the respondent