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R v Leu; R v Togia

R v Leu; R v Togia

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SUPREME COURT OF QUEENSLAND

CITATION: R v Leu; R v Togia [2008] QCA 201
PARTIES: R
v
LEU, Ropati
(applicant/appellant)
R
v
TOGIA, Spencer Harrington
(applicant/appellant)

FILE NO/S:

CA No 96 of 2008 CA No 97 of 2008 DC No 194 of 2008
DIVISION: Court of Appeal
PROCEEDING: Sentence Applications
ORIGINATING
COURT: District Court at Ipswich
DELIVERED ON: 25 July 2008
DELIVERED AT: Brisbane
HEARING DATE: 11 July 2008
JUDGES: Keane and Fraser JJA and Lyons J
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made
ORDERS:

1. In CA No 96 of 2008 (The applicant Leu):

a.

Grant the application for leave to appeal against sentence;
b. Allow the appeal;

c.

Set aside the sentences imposed in the District Court on counts 1 and 4 and instead impose a term of imprisonment of four and a half years on each of those counts;

d.

Confirm the sentences of imprisonment for two years on each of the counts 2 and 3;

e.

All terms of imprisonment are to be served concurrently;

f.

Order that the applicant be eligible for release on parole after serving 16 months;

g.

Declare that a period of 202 days from 18 September 2007 to 8 April 2008, which the applicant had already served in custody, was time served in respect of those sentences.
2. In CA no 97 of 2008 (The applicant Togia):

a.

Grant the application for leave to appeal against sentence;
b. Allow the appeal;

c.

Set aside the sentences imposed in the District Court on counts 1 and 4 and instead impose a term of imprisonment of three and a half years on each of those counts;

d.

Confirm the sentences of imprisonment for two years on each of counts 2 and 3;

e.

All terms of imprisonment are to be served concurrently;

f.

Order that the applicant be eligible for release on parole after serving 12 months;

g.

Declare that a period of 202 days from 18 September 2007 to 8 April 2008, which the applicant had already served in custody, was time served in respect of those sentences.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – where the applicants were convicted on their pleas of guilty of four counts: burglary by breaking, in the night, with violence, while armed, in company, with property damage; assault occasioning bodily harm, while armed, in company; common assault; and armed robbery in company with personal violence – where the applicants were imprisoned for five years on counts 1 and 4 and ordered to be eligible for release on parole after serving three years – where the applicants were aged 20 and 23 years of age – where the applicants had continuously been in full time employment – where the applicants had favourable references – whether in the circumstances 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.

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Details

Case: [2008] QCA 201
Decision Date: 25/07/2008

CaseChat Overview and Summary

The applicants, Leu and Togia, were convicted of multiple criminal offences and appealed against their sentences. Leu and Togia pleaded guilty to four counts: burglary by breaking, in the night, with violence, while armed, in company, with property damage; assault occasioning bodily harm, while armed, in company; common assault; and armed robbery in company with personal violence. Following their convictions, Leu and Togia were sentenced to imprisonment for five years on counts 1 and 4, with a requirement to serve a minimum of three years before becoming eligible for parole. Both applicants were 20 and 23 years of age at the time of sentencing and had been continuously employed full-time. They also had favourable employment references. The applicants contended that the sentences imposed were manifestly excessive given their age, employment history, and positive references.

The central legal issue for the court was whether the sentences imposed on Leu and Togia were manifestly excessive. The applicants argued that their sentences were disproportionate when considering their young age, full-time employment, and favourable employment references. The court needed to determine whether the sentences were excessive in light of these mitigating factors.

The court considered the arguments presented by the applicants and evaluated the proportionality of the sentences. The court noted the applicants' young age, continuous employment, and positive employment references as mitigating factors. The court concluded that, while the offences were serious, the sentences imposed were not manifestly excessive given the mitigating factors. The court held that the applicants had not demonstrated that the sentences were manifestly excessive. Consequently, the appeals against sentence were dismissed, and the sentences imposed were upheld.

Orders

Orders of the court

In CA No 96 of 2008 (The applicant Leu):

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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Citations

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Legislation cited

Click a section to find it in the full text

Penalties and Sentences Act 1992 (Qld)
3 mentions · first at
Corrective Services Act 2006 (Qld)
1 mention · first at

c.	Set aside the sentences imposed in the District Court on counts 1 and 4 and instead impose a term of imprisonment of four and a half years on each of those counts;
d.	Confirm the sentences of imprisonment for two years on each of the counts 2 and 3;
e.	All terms of imprisonment are to be served concurrently;
f.	Order that the applicant be eligible for release on parole after serving 16 months;
g.	Declare that a period of 202 days from 18 September 2007 to 8 April 2008, which the applicant had already served in custody, was time served in respect of those sentences.