R v LY - [2008] QCA 76

SUPREME COURT OF QUEENSLAND

CITATION:

R v LY [2008] QCA 76

PARTIES:

R
v
LY
(applicant/appellant)

FILE NO/S:

CA No 188 of 2007
SC No 478 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 April 2008

DELIVERED AT:

Brisbane

HEARING DATE:

22 February 2008

JUDGES:

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

ORDERS:

1.    Application for leave to appeal against sentence granted

2.    Appeal allowed

3.    Vary the sentence imposed on count 1 by ordering that the applicant be detained for two and a half years

4.    Under s 227(2) Juvenile Justice Act 1992 (Qld), the applicant is to be released after serving 15 months of her detention

5.    Otherwise confirm the sentence imposed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – DISPARITY – CO-OFFENDERS – where applicant and her boyfriend (who was her   co-offender) planned to murder her parents – where plan was thwarted only when applicant's father struggled with and overpowered co-offender – where applicant and co-offender both pleaded guilty to attempted murder and conspiracy to murder – where applicant was sentenced to detention for four years for attempted murder and two years for conspiracy to murder, with an order that she be released after two years – where co-offender was sentenced to nine years imprisonment for attempted murder, five years imprisonment for conspiracy to murder and one year cumulative imprisonment for armed robbery – where co-offender was an adult at the time of the offences and so was sentenced under the Penalties and Sentences Act while applicant was a juvenile and was sentenced under the Juvenile Justice Act – where sentencing judge said the co-offender 'could justifiably feel aggrieved were the effect of his punishment to be inappropriately grossly disproportionate' to the applicant's – whether parity is an appropriate consideration when co-offenders fall to be sentenced under different statutory regimes – whether trial judge erred by giving too much weight to issues of parity

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 – where applicant was sentenced to detention for four years for attempted murder and two years for conspiracy to murder, with an order that she be released after two years – where attempt to murder parents did not result in major injury to either parent – where applicant was 15 years old, mentally unwell and irrational at the time of the offences – where applicant suffered psychological trauma after being raped at the age of 13 – where applicant subsequently felt remorse and guilt – where detention would be particularly challenging for applicant – where applicant had good prospects of rehabilitation – whether sentence imposed was for 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 LY

Details

AGLC: R v LY [2008] QCA 76
Case: [2008] QCA 76
Decision Date: 4 April 2008

CaseChat Overview and Summary

In the case of R v LY, the applicant and her boyfriend conspired to murder her parents. Their plan was thwarted only when the applicant's father struggled with and overpowered the boyfriend. Both the applicant and her boyfriend pleaded guilty to attempted murder and conspiracy to murder. The applicant was sentenced to detention for four years for attempted murder and two years for conspiracy to murder, with an order that she be released after two years. Her boyfriend was sentenced to nine years imprisonment for attempted murder, five years imprisonment for conspiracy to murder and one year cumulative imprisonment for armed robbery. The applicant appealed against her sentence on the basis that it was excessive and that the trial judge gave too much weight to parity with her co-offender. The co-offender was an adult at the time of the offences and was sentenced under the Penalties and Sentences Act, while the applicant was a juvenile and was sentenced under the Juvenile Justice Act.

The court had to determine whether parity is an appropriate consideration when co-offenders are sentenced under different statutory regimes and whether the trial judge erred by giving too much weight to issues of parity. The court also had to determine whether the sentence imposed on the applicant was for the least time justified in the circumstances. The court held that the sentence imposed on the applicant was excessive and that the trial judge did give too much weight to parity with her co-offender. The court also held that the applicant's age, mental health, and prospects of rehabilitation were relevant factors that the trial judge should have considered.

The court allowed the appeal and varied the sentence imposed on count 1 by ordering that the applicant be detained for two and a half years. The applicant is to be released after serving 15 months of her detention under section 227(2) of the Juvenile Justice Act 1992 (Qld). The court confirmed the sentence imposed on count 2. The court granted the applicant leave to appeal against her sentence and allowed the appeal in part.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed

3. Vary the sentence imposed on count 1 by ordering that the applicant be detained for two and a half years

4. Under s 227(2) Juvenile Justice Act 1992 (Qld), the applicant is to be released after serving 15 months of her detention

5. Otherwise confirm the sentence imposed

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 LY [2008] QCA 76
PARTIES:	R v LY (applicant/appellant)
FILE NO/S:	CA No 188 of 2007 SC No 478 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	4 April 2008
DELIVERED AT:	Brisbane
HEARING DATE:	22 February 2008
JUDGES:	McMurdo P, Holmes JA and Mackenzie AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted 2. Appeal allowed 3. Vary the sentence imposed on count 1 by ordering that the applicant be detained for two and a half years 4. *Under s 227(2) Juvenile Justice Act* 1992 (Qld), the applicant is to be released after serving 15 months of her detention 5. Otherwise confirm the sentence imposed**
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – DISPARITY – CO-OFFENDERS – where applicant and her boyfriend (who was her co-offender) planned to murder her parents – where plan was thwarted only when applicant's father struggled with and overpowered co-offender – where applicant and co-offender both pleaded guilty to attempted murder and conspiracy to murder – where applicant was sentenced to detention for four years for attempted murder and two years for conspiracy to murder, with an order that she be released after two years – where co-offender was sentenced to nine years imprisonment for attempted murder, five years imprisonment for conspiracy to murder and one year cumulative imprisonment for armed robbery – where co-offender was an adult at the time of the offences and so was sentenced under the Penalties and Sentences Act while applicant was a juvenile and was sentenced under the Juvenile Justice Act – where sentencing judge said the co-offender 'could justifiably feel aggrieved were the effect of his punishment to be inappropriately grossly disproportionate' to the applicant's – whether parity is an appropriate consideration when co-offenders fall to be sentenced under different statutory regimes – whether trial judge erred by giving too much weight to issues of parity 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 – where applicant was sentenced to detention for four years for attempted murder and two years for conspiracy to murder, with an order that she be released after two years – where attempt to murder parents did not result in major injury to either parent – where applicant was 15 years old, mentally unwell and irrational at the time of the offences – where applicant suffered psychological trauma after being raped at the age of 13 – where applicant subsequently felt remorse and guilt – where detention would be particularly challenging for applicant – where applicant had good prospects of rehabilitation – whether sentence imposed was for the…