R v MCP - [2018] QCA 154

SUPREME COURT OF QUEENSLAND

CITATION:

R v MCP [2018] QCA 154

PARTIES:

R
v
MCP
(applicant)

FILE NO/S:

CA No 314 of 2017
DC No 41 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Southport – Date of Conviction: 31 August 2017 (Kent QC DCJ)

DELIVERED ON:

6 July 2018

DELIVERED AT:

Brisbane

HEARING DATE:

3 April 2018

JUDGES:

Fraser and Gotterson and Morrison JJA

ORDER:

The application is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the applicant and a co-offender were sentenced in the Childrens Court on one count of robbery in company, with violence – where each received a sentence of two years’ probation without a conviction being recorded – where a video recording of the events existed – where it was submitted that the co-offender initiated the offensive conduct – where the learned sentencing judge characterised their participation in the offence as equal – where the applicant participated in a recorded police interview, made admissions and expressed remorse and his co-offender did not – where the applicant spent a night in detention and his co-offender did not – where the applicant was a year younger than his co-offender at sentence – whether there was error in not moderating his sentence in accordance with the parity principle

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited
R v AAH & AAG (2009) 198 A Crim R 1; [2009] QCA 321, cited

COUNSEL:

F Richards for the applicant
M J Hynes for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of Morrison JA and the order proposed by his Honour.
GOTTERSON JA: I agree with the order proposed by Morrison JA and with the reasons given by his Honour.
MORRISON JA: On 11 December 2017 the applicant and a co-offender (DWC) were sentenced in the Childrens Court on one count of robbery in company, with violence. Each received a sentence of two years’ probation without a conviction being recorded.
The applicant challenges his sentence on the basis that there was error in not moderating his sentence in accordance with the parity principle.
Circumstances of the offending
On 5 December 2016 the complainant (a 15 year old student with learning difficulties) went to McDonalds at the Pacific Fair Shopping Centre, with a friend. A group of teenagers were in the food court. The applicant and DWC were part of that group.
The complainant’s friend walked over to the group of teenagers and greeted an associate. DWC asked the friend for a dollar, but he responded that he did not have any money. DWC repeatedly demanded money, standing close to the friend’s face. He threatened to take the money from him.
The friend left the group and returned to…

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 MCP

Details

AGLC: R v MCP [2018] QCA 154
Case: [2018] QCA 154
Decision Date: 6 July 2018

CaseChat Overview and Summary

The applicant, a young person, sought leave to appeal against his sentence in the Children’s Court. He and his co-offender, DWC, were sentenced to two years’ probation on one count of robbery in company, with violence. Both offenders were of similar age at the time of the offence and sentencing. The applicant argued that the parity principle required a different sentence for him as he had played a less active role than DWC in the offence, and had shown remorse and co-operated with the police. The Crown submitted that the sentencing judge was entitled to view the participation of both offenders as equal, and that the sentence reflected the seriousness of the offence.

The court considered whether there was a sufficient disparity in the participation of the two offenders to warrant a different sentence for the applicant. The court noted that the sentencing judge had viewed the participation of both offenders as equal and the court was reluctant to interfere with that view. The court found that the applicant and DWC had both played active roles in the offence, with DWC initiating the attack and the applicant kicking the complainant when he got up. The court held that there was no justifiable sense of grievance or appearance that justice had not been done, as the disparity between the sentences was not such as to warrant appellate interference.

The court concluded that the sentencing judge had not erred in imposing the same sentence on both offenders, as the participation of both in the offence was characterised as equal. The applicant’s submissions that he had played a less active role in the offence, and had shown remorse and co-operated with the police, were not sufficient to warrant a different sentence. The court dismissed the application for leave to appeal.

The application is refused. No further orders were made.

Orders

Orders of the court

The application is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The complainant’s mobile phone was worth $950 and the complainant had only had it for about two months. The complainant’s bag contained his mobile phone charger, Apple earphones and other miscellaneous items including $3.00 in cash. The bag was worth about $50 and the baseball cap was worth about $45. None of the stolen items were recovered.The video evidence I have viewed the video of the events. In that fashion a comparison of the applicant’s and DWC’s participation can be made. The table below sets out the time elapsed on the video and the event: For the applicant it was submitted that there were distinguishing features between the two offenders. DWC was 14 years old at the time of the offence, and 15 at sentence. The applicant was just 13 years and three months at the time of the offence, and 14 at sentence. It was submitted that DWC initiated the offensive conduct and “the applicant took a marginally less active role in the offence”. DWC self-reported having anger issues. The applicant participated in a recorded police interview, made admissions and expressed remorse. He also spent a night in detention. It was contended that the parity principle recognised in Lowe v The Queen[1] required an appellate court to intervene where the disparity between sentences imposed on co-offenders is “such as to give rise to a justifiable sense of grievance … or to give the appearance that justice has not been done”.[2] The differences between the two offenders was said to have created a justifiable sense of grievance at the fact that the same sentence was imposed on each.[1](1984) 154 CLR 606 at 623-624; [1984] HCA 46.[2]Lowe v The Queen (1984) 154 CLR 606 at 623. For the Crown it was submitted that the learned sentencing judge was entitled to the view that the involvement of both offenders was about equal. Both were part of the group of teenagers that pursued the complainant and robbed him of items of his property. Both co-offenders punched the complainant while he was on the ground. Whilst DWC was the first to push the complainant and swung him to the ground, the applicant kicked him in the hip when he got up. It was submitted that perfect consistency between co-offenders is not necessary, and there was no justifiable sense of grievance.[3][3]Referring to R v AAH & AAG (2009) 198 A Crim R 1; [2009] QCA 321 at [9]-[12]. It was further submitted that a sentence of probation was geared towards rehabilitation of young offenders. Two years was an appropriate period to reflect the seriousness of an unprovoked and persistent group attack on a lone boy who offered no resistance.Approach of the learned sentencing judge The learned sentencing judge did not set out the facts in detail, but characterised the applicant’s and DWC’s participation as follows:“… the two of you were part of a group who chose to attack the unfortunate complainant, who was on his own and fairly defenceless against a group of perhaps six or seven people.”[4][4]Appeal Book (AB) 27 lines 6-8.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v MCP [2018] QCA 154
PARTIES:	R v MCP (applicant)
FILE NO/S:	CA No 314 of 2017 DC No 41 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Southport – Date of Conviction: 31 August 2017 (Kent QC DCJ)
DELIVERED ON:	6 July 2018
DELIVERED AT:	Brisbane
HEARING DATE:	3 April 2018
JUDGES:	Fraser and Gotterson and Morrison JJA
ORDER:	The application is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the applicant and a co-offender were sentenced in the Childrens Court on one count of robbery in company, with violence – where each received a sentence of two years’ probation without a conviction being recorded – where a video recording of the events existed – where it was submitted that the co-offender initiated the offensive conduct – where the learned sentencing judge characterised their participation in the offence as equal – where the applicant participated in a recorded police interview, made admissions and expressed remorse and his co-offender did not – where the applicant spent a night in detention and his co-offender did not – where the applicant was a year younger than his co-offender at sentence – whether there was error in not moderating his sentence in accordance with the parity principle Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited R v AAH & AAG (2009) 198 A Crim R 1; [2009] QCA 321, cited
COUNSEL:	F Richards for the applicant M J Hynes for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent