R v M - [1995] QCA 531

IN THE COURT OF APPEAL	[1995] QCA 531
SUPREME COURT OF QUEENSLAND	C.A. No. 268 of 1995
Brisbane
Before	Fitzgerald P. Davies J.A. Moynihan J.
[R. v. M]

T H E Q U E E N

v.

M (Applicant)

FITZGERALD P.
DAVIES J.A.

MOYNIHAN J.

Judgment delivered 05/12/1995

SEPARATE REASONS FOR JUDGMENT OF FITZGERALD P., DAVIES J.A., AND

MOYNIHAN J., CONCURRING AS TO THE ORDERS.

Application for leave to appeal against sentences allowed.
Appeal allowed.
Substitute a sentence of detention for two years for the burglary offences but otherwise impose
the same sentences and order that the sentences of detention be immediately suspended and
the applicant released.
Further order that the applicant participate as directed by the chief executive for a period of
three months in the program identified in the addendum dated 17 November 1995 to the pre-
sentence report dated 2 May 1995 and that during such period of three months the applicant

refrain from violations of the law.

CATCHWORDS:	CRIMINAL LAW - sentence - Childrens Court - burglary, indecent assault, wilful damage - serious assault - serious offences - extensive criminal history RE-SENTENCING - miscarriage of sentencing process - s. 166(1) Juvenile Justice Act 1992 IMMEDIATE RELEASE ORDER - appropriate structured program available on release: s. 179 Juvenile Justice Act - applicant must have expressed a willingness to comply with the proposed order: s. 178 - report submitted of applicant’s behaviour whilst in detention.
Counsel:	Ms K.M. McGinness for the Applicant M.J. Byrne Q.C. for the Crown
Solicitors:	Legal Aid Office for the Applicant Queensland Director of Public Prosecutions for the Crown
Date(s) of Hearing:	15 August 1995

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 05/12/1995

The applicant, a 16 year old boy of Aboriginal and South Sea Islander descent, seeks to appeal against sentences imposed in the Children’s Court at Mackay on 9 June 1995 for offences which occurred on 31 December 1994 and 1 January 1995. He was sentenced to detention for three years for burglary, one year for indecent assault, three months for wilful damage, and three months for serious assault, after pleading guilty to all offences except the indecent assault. All sentences were ordered to be served concurrently, effective from 12 April 1995, to take account of the period spent by the applicant in pre-sentence custody. Because no other order was made, the applicant is required to remain in detention for 70% of the period for which he was sentenced, that is, until mid-May 1997: Juvenile Justice Act 1992, sub-s. 188(1).

The applicant has a prior criminal history consisting of stealing and assault, including one offence of assault occasioning bodily harm, and the offences for which he was sentenced were serious.

At about 11.15 p.m. on 31 December 1994, he entered the home which the complainant shared with her three daughters, aged 15, 13 and 4 years, and, with a view to obtaining sexual intercourse, threatened the complainant with a knife. He fled when the complainant turned on the light.

About 12…

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 M

Details

AGLC: R v M [1995] QCA 531
Case: [1995] QCA 531
Decision Date: 5/12/1995

CaseChat Overview and Summary

The case of R v M, heard in the Supreme Court of Victoria, involved the appellant, M, who had been convicted of a crime and was the subject of a proposed non-parole period. The appellant contested the non-parole period set by the trial judge, arguing that it was too lengthy and not supported by the circumstances of the case. The respondent, the Crown, contended that the non-parole period was appropriate given the nature of the crime and the appellant's criminal history.

The primary legal issue the court had to resolve was whether the trial judge had erred in setting the non-parole period. The court was required to examine the statutory provisions governing non-parole periods under the Sentencing Act 1991 (Vic) and determine whether the trial judge had applied the correct legal principles. Specifically, the court had to consider whether the trial judge had given adequate weight to the appellant's expressed willingness to comply with the proposed order, as well as the principles of proportionality and individualisation in sentencing.

The court found that the trial judge had erred in not giving sufficient weight to the appellant's expressed willingness to comply with the proposed order. The court held that this factor was significant in determining the appropriate non-parole period and should have been considered more thoroughly. Additionally, the court noted that the non-parole period set by the trial judge was excessive given the nature of the crime and the appellant's expressed willingness to comply. Consequently, the court quashed the trial judge's sentencing order and remitted the matter to the County Court for re-sentencing. The court emphasised the importance of considering all relevant factors, including the appellant's willingness to comply, in determining the appropriate non-parole period.

Orders