R v Lotoaniui - [2013] QCA 71

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lotoaniui [2013] QCA 71

PARTIES:

R
v
LOTOANIUI, Daniel Taneila
(applicant)

FILE NO/S:

CA No 277 of 2012
DC No 948 of 2012
DC No 973 of 2012
DC No 1445 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

5 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

12 March 2013

JUDGES:

Margaret McMurdo P and Holmes JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The application for leave to appeal against sentence is granted.1.

The appeal is allowed.2.

The sentences imposed on counts 1, 6, 8, 9, 11, 12, 14, 17, 18 and 21 on Indictment No. 973 of 2012 and count 1 on Indictment No. 948 of 2012, are set aside and instead sentences of eight and a half years imprisonment are substituted on all those counts.3.

These offences are declared to be serious violent offences.4.

The appeal is otherwise dismissed.5.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to multiple offences contained in two indictments, including 11 counts of armed robbery, two of which were in company and one of which was in company with personal violence – where the applicant was sentenced to 10 years imprisonment for the armed robbery offences and for lesser concurrent terms of imprisonment for all remaining offences, with a declaration that the armed robberies were serious violent offences – where the armed robbery offences were committed while the applicant was on parole for a number of property offences – where the sentencing judge was therefore required to order that his 10 year sentence be served cumulatively on the previously imposed term of three years imprisonment for the property offences pursuant to s 156A Penalties and Sentences Act 1992 (Qld) – where the applicant contends that the sentencing judge wrongly found the appropriate range for the armed robbery offences to be 10 to 12 years imprisonment – where the applicant contends that the sentence is manifestly excessive, taking into account the cumulative nature of the sentence – whether the sentencing judge wrongly determined the appropriate sentencing range – whether the sentence of 10 years imprisonment for the armed robbery offences was manifestly excessive, having regard to the cumulative nature of the sentence

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

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited
R v Brown [2003] QCA 372, considered
R v Kapitano[2012] QCA 288, considered
R v Keating[2002] QCA 19, considered
R v Matthewson[2001] QCA 4, considered
R v Rose[2002] QCA 134, considered
R v Tilley; ex parte Attorney-General (Qld)[2002] QCA 144, considered

COUNSEL:

E Wilson SC for the applicant
B Merrin for the respondent

SOLICITORS:

Legal…

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 Lotoaniui

Details

AGLC: R v Lotoaniui [2013] QCA 71
Case: [2013] QCA 71
Decision Date: 5 April 2013

CaseChat Overview and Summary

The case of R v Lotoaniui involved the appellant appealing against his sentence following a guilty plea to multiple offences, including armed robbery. The court was tasked with determining whether the sentencing judge had erred in establishing the appropriate sentencing range and if the sentence imposed was manifestly excessive. The appellant argued that the sentencing judge had incorrectly determined the appropriate range for the armed robbery offences to be 10 to 12 years imprisonment and that the 10-year sentence was excessive, particularly given the cumulative nature of the sentence when combined with a previous term for property offences.

The court found that the sentencing judge had indeed erred in the determination of the appropriate sentencing range for the armed robbery offences. The appropriate range was found to be between seven and a half to nine and a half years, rather than the 10 to 12 years identified by the sentencing judge. Furthermore, the court determined that the 10-year sentence for the armed robbery offences was manifestly excessive, especially when considering the cumulative impact on the overall sentence.

As a result, the court allowed the appeal, set aside the original sentences, and substituted sentences of eight and a half years imprisonment for the specified counts. The court declared these offences to be serious violent offences, while dismissing the appeal in all other respects. This decision highlights the importance of correctly determining the appropriate sentencing range and the need to carefully consider the cumulative effect of sentences in cases involving multiple offences committed while on parole.

Orders

Orders of the court

The application for leave to appeal against sentence is granted.1.

The appeal is allowed.2.

The sentences imposed on counts 1, 6, 8, 9, 11, 12, 14, 17, 18 and 21 on Indictment No. 973 of 2012 and count 1 on Indictment No. 948 of 2012, are set aside and instead sentences of eight and a half years imprisonment are substituted on all those counts.3.

These offences are declared to be serious violent offences.4.

The appeal is otherwise dismissed.5.

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 Lotoaniui [2013] QCA 71
PARTIES:	R v LOTOANIUI, Daniel Taneila (applicant)
FILE NO/S:	CA No 277 of 2012 DC No 948 of 2012 DC No 973 of 2012 DC No 1445 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	5 April 2013
DELIVERED AT:	Brisbane
HEARING DATE:	12 March 2013
JUDGES:	Margaret McMurdo P and Holmes JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The application for leave to appeal against sentence is granted.1. The appeal is allowed.2. The sentences imposed on counts 1, 6, 8, 9, 11, 12, 14, 17, 18 and 21 on Indictment No. 973 of 2012 and count 1 on Indictment No. 948 of 2012, are set aside and instead sentences of eight and a half years imprisonment are substituted on all those counts.3. These offences are declared to be serious violent offences.4. The appeal is otherwise dismissed.5.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to multiple offences contained in two indictments, including 11 counts of armed robbery, two of which were in company and one of which was in company with personal violence – where the applicant was sentenced to 10 years imprisonment for the armed robbery offences and for lesser concurrent terms of imprisonment for all remaining offences, with a declaration that the armed robberies were serious violent offences – where the armed robbery offences were committed while the applicant was on parole for a number of property offences – where the sentencing judge was therefore required to order that his 10 year sentence be served cumulatively on the previously imposed term of three years imprisonment for the property offences pursuant to s 156A Penalties and Sentences Act 1992 (Qld) – where the applicant contends that the sentencing judge wrongly found the appropriate range for the armed robbery offences to be 10 to 12 years imprisonment – where the applicant contends that the sentence is manifestly excessive, taking into account the cumulative nature of the sentence – whether the sentencing judge wrongly determined the appropriate sentencing range – whether the sentence of 10 years imprisonment for the armed robbery offences was manifestly excessive, having regard to the cumulative nature of the sentence Penalties and Sentences Act 1992 (Qld), s 156A Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited R v Brown [2003] QCA 372, considered R v Kapitano[2012] QCA 288, considered R v Keating[2002] QCA 19, considered R v Matthewson[2001] QCA 4, considered R v Rose[2002] QCA 134, considered R v Tilley; ex parte Attorney-General (Qld)[2002] QCA 144, considered
COUNSEL:	E Wilson SC for the applicant B Merrin for the respondent
SOLICITORS:	Legal…