R v Kuzmanovski; ex parte - [2012] QCA 19

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kuzmanovski; ex parte A-G (Qld) [2012] QCA 19

PARTIES:

R
v
KUZMANOVSKI, Aleksandar
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 250 of 2011
DC No 180 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

24 February 2012

DELIVERED AT:

Brisbane

HEARING DATE:

2 February 2012

JUDGES:

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

ORDER:

Appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where respondent pleaded guilty to one count of armed robbery and was convicted and sentenced to three years imprisonment with an immediate parole release date – where appellant argues that the release of the respondent on immediate parole was plainly unreasonable and unjust – where respondent stole a motor vehicle – where respondent produced a replica weapon – where complainant suffered distress and impairment to income earning capacity – where the respondent entered an early guilty plea and cooperated with authorities – where respondent suffered from Asperger’s Disorder – where impairments in respondent’s working memory and verbal comprehension were likely to affect his reasoning and judgment – where respondent’s capacity to understand the consequences of his behaviour was significantly impaired – where respondent was influenced by a computer game – where respondent had no prior criminal history – where psychologist suggested that future re-offending could be prevented – where psychologist suggested that if respondent was incarcerated he would be “highly susceptible” to the influences of more skilled delinquents – where psychologist suggested that prospects of rehabilitation, and therefore the protection of community against future re-offending, would be improved by not incarcerating respondent – whether immediate release on parole was manifestly inadequate

Lacey v Attorney-General of Queensland (2011) 242 CLR 573; [2011] HCA 10, cited
R v Dullroy & Yates; ex parte A‑G (Qld)[2005] QCA 219, applied
R v Moss [1999] QCA 426, considered

COUNSEL:

A W Moynihan SC for the appellant
J McInnes for the respondent

SOLICITORS:

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

MUIR JA: I agree that the appeal should be dismissed for the reasons given by Fraser JA.

FRASER JA: On 12 August 2011 the respondent pleaded guilty to one count of armed robbery on 26 July 2010. He was convicted and sentenced to three years imprisonment with an immediate parole release date. It was ordered that a copy of a psychological report on the respondent be provided to Queensland Corrective Services.

The Attorney-General has appealed against the sentence on the ground that it is manifestly inadequate. The Director of Public Prosecutions, who appeared for the Attorney-General, accepted that the sentence of three years imprisonment was within range but he argued that to release the respondent…

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.

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Details

Case: [2012] QCA 19
Decision Date: 24 February 2012

CaseChat Overview and Summary

The appeal was brought by the Crown against the sentence imposed on Kuzmanovski, who had pleaded guilty to armed robbery. The sentencing court had ordered Kuzmanovski to serve three years imprisonment, with an immediate parole release date. The Crown argued that the release of Kuzmanovski on immediate parole was plainly unreasonable and unjust. The legal issues in the case were whether the sentence was manifestly inadequate or excessive. Kuzmanovski had stolen a motor vehicle and produced a replica weapon during the robbery, causing distress to the complainant and impairing their income earning capacity. However, Kuzmanovski had entered an early guilty plea, cooperated with authorities, and had no prior criminal history. Kuzmanovski also suffered from Asperger’s Disorder, which impaired his working memory, verbal comprehension, reasoning and judgment. A psychologist had suggested that future re-offending could be prevented if Kuzmanovski was not incarcerated, as he would be “highly susceptible” to the influences of more skilled delinquents. The psychologist also suggested that the prospects of rehabilitation, and therefore the protection of the community against future re-offending, would be improved by not incarcerating Kuzmanovski.

The court held that the sentence was not manifestly inadequate. The court recognised that Kuzmanovski’s Asperger’s Disorder had impaired his capacity to understand the consequences of his behaviour, and that he had been influenced by a computer game. However, the court also noted that the seriousness of the offence, the distress caused to the complainant, and the need to protect the community from future offending by Kuzmanovski, all pointed towards a term of imprisonment. The court also noted that Kuzmanovski’s early guilty plea and cooperation with authorities were relevant mitigating factors. The court held that the sentencing judge had properly considered all of these factors and had not erred in imposing a sentence of three years imprisonment, with an immediate parole release date. The appeal against sentence was therefore dismissed.

Orders

Orders of the court

Appeal against sentence dismissed.

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 Kuzmanovski; ex parte A-G (Qld) [2012] QCA 19
PARTIES:	R v KUZMANOVSKI, Aleksandar (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 250 of 2011 DC No 180 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	24 February 2012
DELIVERED AT:	Brisbane
HEARING DATE:	2 February 2012
JUDGES:	Muir, Fraser and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against sentence dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where respondent pleaded guilty to one count of armed robbery and was convicted and sentenced to three years imprisonment with an immediate parole release date – where appellant argues that the release of the respondent on immediate parole was plainly unreasonable and unjust – where respondent stole a motor vehicle – where respondent produced a replica weapon – where complainant suffered distress and impairment to income earning capacity – where the respondent entered an early guilty plea and cooperated with authorities – where respondent suffered from Asperger’s Disorder – where impairments in respondent’s working memory and verbal comprehension were likely to affect his reasoning and judgment – where respondent’s capacity to understand the consequences of his behaviour was significantly impaired – where respondent was influenced by a computer game – where respondent had no prior criminal history – where psychologist suggested that future re-offending could be prevented – where psychologist suggested that if respondent was incarcerated he would be “highly susceptible” to the influences of more skilled delinquents – where psychologist suggested that prospects of rehabilitation, and therefore the protection of community against future re-offending, would be improved by not incarcerating respondent – whether immediate release on parole was manifestly inadequate Lacey v Attorney-General of Queensland (2011) 242 CLR 573; [2011] HCA 10, cited R v Dullroy & Yates; ex parte A‑G (Qld)[2005] QCA 219, applied R v Moss [1999] QCA 426, considered
COUNSEL:	A W Moynihan SC for the appellant J McInnes for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent