R v Kynaston - [2005] QCA 322

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kynaston [2005] QCA 322

PARTIES:

R
v
KYNASTON, Robert John Phillip
(applicant/appellant)

FILE NO/S:

CA No 146 of 2005
DC No 109 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED EX TEMPORE ON:

29 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

29 August 2005

JUDGES:

Jerrard and Keane JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Grant leave to appeal against sentence
2. Allow appeal
3. Set aside the sentences ordered on counts 1 and 2 on       the indictment
4. Order instead on count 1 that the applicant be sentenced to 12 months imprisonment and then released on probation on his consenting to being placed on a probation order for three years with such order to contain the general requirements specified in s 93 of the Penalties and Sentences Act 1992 (Qld)
5. Further order that the terms of the probation order       be explained to the applicant by his legal       representatives and that a conviction be recorded
6.    Vary the sentence imposed on count 2 by deleting the       recommendation for eligibility for post-prison       community based release after the applicant has       served 18 months and ordering instead that that       sentence of four years imprisonment be suspended       after the applicant has served 12 months thereof for       an operational period of four years

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – applicant pleaded guilty to two armed robberies of service stations – at time of offences applicant had drug addiction – applicant had limited prior criminal history – applicant showed genuine remorse and wrote apologetic letters to service station managers – applicant’s rehabilitative efforts demonstrated by evidence of applicant becoming free of drug addiction and starting up a plastering business partnership – applicant had family support and a small child with his partner – whether sentencing judge gave insufficient weight to applicant’s rehabilitation – whether a probation order should be imposed to allow continued monitoring of applicant’s rehabilitation

Criminal Offence Victims Act 1995 (Qld), s 14
Penalties and Sentences Act 1992 (Qld), s 93, s 94(1)(d)

R v Hammond [1996] QCA 508; [1997] 2 Qd R 195, considered
R v Hood [2005] QCA 159; CA No 38 of 2005, 13 May 2005, applied
R v Maxfield [2000] QCA 320; [2002] 1 Qd R 417, cited

COUNSEL:

D L Kellie for the applicant/appellant
S G Bain for the respondent

SOLICITORS:

Aboriginal and Torres Strait Islander Legal Service for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

JERRARD JA: This is an unusual case. The applicant has no prior convictions for offences of dishonesty, and convictions previously only for offences in and about the use of an uninsured or unregistered vehicle or when unlicensed, all committed in 1999, or else for…

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 Kynaston

Details

AGLC: R v Kynaston [2005] QCA 322
Case: [2005] QCA 322
Decision Date: 29 August 2005

CaseChat Overview and Summary

In the case of R v Kynaston, the applicant appealed against his sentence for two counts of armed robbery. The applicant had pleaded guilty to two armed robberies of service stations, committed while suffering from a drug addiction. The applicant had a limited prior criminal history but showed genuine remorse by writing apologetic letters to the service station managers. The applicant's rehabilitation was evidenced by his recovery from drug addiction and the establishment of a plastering business partnership, supported by family and having a child with his partner. The appeal focused on whether the sentencing judge had given insufficient weight to the applicant's rehabilitation and whether a probation order should be imposed to monitor his ongoing rehabilitation.

The court examined whether the sentencing judge had adequately considered the applicant's rehabilitation efforts, which included overcoming drug addiction and initiating a business partnership. The court also assessed whether a probation order would be appropriate to ensure continued monitoring of the applicant's rehabilitation. The appeal was allowed as the court found that the sentencing judge had not sufficiently taken into account the applicant's genuine efforts towards rehabilitation, which were significant mitigating factors in sentencing.

The court granted leave to appeal against the sentence, allowed the appeal, and set aside the original sentences on counts 1 and 2. For count 1, the applicant was sentenced to 12 months imprisonment, followed by release on probation, subject to a probation order for three years. The probation order was to include the general requirements specified in section 93 of the Penalties and Sentences Act 1992 (Qld). The terms of the probation order were to be explained to the applicant by his legal representatives, and a conviction was to be recorded. For count 2, the sentence of four years imprisonment was varied to be suspended after 12 months, for an operational period of four years, instead of the original recommendation for eligibility for post-prison community-based release after 18 months.

Orders

Orders of the court

1. Grant leave to appeal against sentence

2. Allow appeal

3. Set aside the sentences ordered on counts 1 and 2 on the indictment

4. Order instead on count 1 that the applicant be sentenced to 12 months imprisonment and then released on probation on his consenting to being placed on a probation order for three years with such order to contain the general requirements specified in s 93 of the Penalties and Sentences Act 1992 (Qld)

5. Further order that the terms of the probation order be explained to the applicant by his legal representatives and that a conviction be recorded

6. Vary the sentence imposed on count 2 by deleting the recommendation for eligibility for post-prison community based release after the applicant has served 18 months and ordering instead that that sentence of four years imprisonment be suspended after the applicant has served 12 months thereof for an operational period of four years

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 Kynaston [2005] QCA 322
PARTIES:	R v KYNASTON, Robert John Phillip (applicant/appellant)
FILE NO/S:	CA No 146 of 2005 DC No 109 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED EX TEMPORE ON:	29 August 2005
DELIVERED AT:	Brisbane
HEARING DATE:	29 August 2005
JUDGES:	Jerrard and Keane JJA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant leave to appeal against sentence 2. Allow appeal 3. Set aside the sentences ordered on counts 1 and 2 on the indictment 4. Order instead on count 1 that the applicant be sentenced to 12 months imprisonment and then released on probation on his consenting to being placed on a probation order for three years with such order to contain the general requirements specified in s 93 of the Penalties and Sentences Act 1992 (Qld) 5. Further order that the terms of the probation order be explained to the applicant by his legal representatives and that a conviction be recorded 6. Vary the sentence imposed on count 2 by deleting the recommendation for eligibility for post-prison community based release after the applicant has served 18 months and ordering instead that that sentence of four years imprisonment be suspended after the applicant has served 12 months thereof for an operational period of four years
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – applicant pleaded guilty to two armed robberies of service stations – at time of offences applicant had drug addiction – applicant had limited prior criminal history – applicant showed genuine remorse and wrote apologetic letters to service station managers – applicant’s rehabilitative efforts demonstrated by evidence of applicant becoming free of drug addiction and starting up a plastering business partnership – applicant had family support and a small child with his partner – whether sentencing judge gave insufficient weight to applicant’s rehabilitation – whether a probation order should be imposed to allow continued monitoring of applicant’s rehabilitation Criminal Offence Victims Act 1995 (Qld), s 14 Penalties and Sentences Act 1992 (Qld), s 93, s 94(1)(d) R v Hammond [1996] QCA 508; [1997] 2 Qd R 195, considered R v Hood [2005] QCA 159; CA No 38 of 2005, 13 May 2005, applied R v Maxfield [2000] QCA 320; [2002] 1 Qd R 417, cited
COUNSEL:	D L Kellie for the applicant/appellant S G Bain for the respondent
SOLICITORS:	Aboriginal and Torres Strait Islander Legal Service for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent