R v MBU - [2012] QCA 349

SUPREME COURT OF QUEENSLAND

CITATION:

R v MBU [2012] QCA 349

PARTIES:

R
v
MBU
(applicant)

FILE NO/S:

CA No 157 of 2012
DC No 40 of 2011
DC No 41 of 2011
DC No 8 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Cairns

DELIVERED ON:

11 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2012

JUDGES:

Muir and Gotterson JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to one count of rape, one count of deprivation of liberty, one count of stealing, one count of grievous bodily harm, one count of assault occasioning bodily harm and one count of assault with intent to rape – where applicant received a head sentence of eight years detention – where applicant aged between 15 and 16 years at the time of the offending – where applicant made limited expressions of remorse during police interview – where expressions of remorse significantly motivated by legal consequences of offending – where early plea of guilty entered – where applicant undertook educational and recreational activities in custody – where applicant submitted head sentence manifestly excessive – where applicant submitted learned sentencing judge erred in his application of s 227 Youth Justice Act 1992 by not finding the combination of mitigating circumstances to amount to “special circumstances” – whether sentence manifestly excessive

Youth Justice Act 1992 (Qld), s 227

R v Basic (2000) 115 A Crim R 456; [2000] QCA 155, cited
R v CAJ [2009] QCA 37, cited
R v DAU; ex parte A-G (Qld) [2009] QCA 244, distinguished
R v IC [2012] QCA 148, distinguished

COUNSEL:

D R Kent for the applicant (pro bono)
S J Farnden for the respondent

SOLICITORS:

No appearance for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: I agree that the application for leave to appeal against sentence should be refused for the reasons given by Daubney J.

GOTTERSON JA: I agree with the order proposed by Daubney J and with the reasons given by his Honour.

DAUBNEY J: On 15 June 2012 the applicant was sentenced in the Childrens Court at Cairns to the following terms of detention for having committed the following offences:

(a) Rape – eight years detention;

(b) Deprivation of liberty – one year detention;

(c) Stealing – six months detention;

(d) Grievous bodily harm – two years detention;

(e) Assault occasioning bodily harm – 18 months detention;

(f) Assault with intent to rape – three years detention.

It was ordered that all sentences be served concurrently, and further ordered that, in the absence of a contrary order, the applicant was to serve 70 per cent of the period of detention before…

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 MBU

Details

AGLC: R v MBU [2012] QCA 349
Case: [2012] QCA 349
Decision Date: 11 December 2012

CaseChat Overview and Summary

The case of R v MBU involved an applicant who had pleaded guilty to a series of serious offences, including rape, deprivation of liberty, stealing, grievous bodily harm, assault occasioning bodily harm, and assault with intent to rape. The applicant was aged between 15 and 16 at the time of the offending. The applicant was sentenced to a head sentence of eight years detention. The applicant argued that the sentence was manifestly excessive and that the learned sentencing judge had erred in his application of s 227 Youth Justice Act 1992 by not finding the combination of mitigating circumstances to amount to “special circumstances”.

The central legal issues in this case revolved around whether the sentence imposed was manifestly excessive or inadequate, and whether the sentencing judge had erred in his application of the Youth Justice Act. The applicant contended that the sentence was manifestly excessive, noting that the applicant had made limited expressions of remorse, which were significantly motivated by the legal consequences of the offending. The applicant also argued that the combination of mitigating circumstances amounted to “special circumstances” under s 227 of the Youth Justice Act.

The court examined the circumstances of the case, including the applicant’s age, the nature of the offences, and the mitigating factors presented. The court considered the applicant’s limited expressions of remorse and the impact of these on the sentencing process. The court also assessed whether the sentence was manifestly excessive or inadequate in the context of the statutory objectives of sentencing. After careful deliberation, the court found that the sentence was not manifestly excessive and that the sentencing judge had not erred in his application of the Youth Justice Act. The court concluded that the combination of mitigating circumstances did not constitute “special circumstances” as defined in the legislation.

The application for leave to appeal against the sentence was refused. The court found that the sentence imposed was appropriate and in accordance with the principles of sentencing under the Youth Justice Act.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

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 MBU [2012] QCA 349
PARTIES:	R v MBU (applicant)
FILE NO/S:	CA No 157 of 2012 DC No 40 of 2011 DC No 41 of 2011 DC No 8 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Cairns
DELIVERED ON:	11 December 2012
DELIVERED AT:	Brisbane
HEARING DATE:	2 November 2012
JUDGES:	Muir and Gotterson JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to one count of rape, one count of deprivation of liberty, one count of stealing, one count of grievous bodily harm, one count of assault occasioning bodily harm and one count of assault with intent to rape – where applicant received a head sentence of eight years detention – where applicant aged between 15 and 16 years at the time of the offending – where applicant made limited expressions of remorse during police interview – where expressions of remorse significantly motivated by legal consequences of offending – where early plea of guilty entered – where applicant undertook educational and recreational activities in custody – where applicant submitted head sentence manifestly excessive – where applicant submitted learned sentencing judge erred in his application of s 227 Youth Justice Act 1992 by not finding the combination of mitigating circumstances to amount to “special circumstances” – whether sentence manifestly excessive Youth Justice Act 1992 (Qld), s 227 R v Basic (2000) 115 A Crim R 456; [2000] QCA 155, cited R v CAJ [2009] QCA 37, cited R v DAU; ex parte A-G (Qld) [2009] QCA 244, distinguished R v IC [2012] QCA 148, distinguished
COUNSEL:	D R Kent for the applicant (pro bono) S J Farnden for the respondent
SOLICITORS:	No appearance for the applicant Director of Public Prosecutions (Queensland) for the respondent