R v MDD - [2019] QCA 197

SUPREME COURT OF QUEENSLAND

CITATION:

R v MDD [2019] QCA 197

PARTIES:

R
v
MDD
(applicant)

FILE NO/S:

CA No 74 of 2019
DC No 3 of 2019
DC No 5 of 2019
DC No 9 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Rockhampton – Date of Sentence: 26 February 2019 (Burnett DCJ)

DELIVERED ON:

Date of Orders: 29 April 2019
Date of Publication of Reasons: 27 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

29 April 2019

JUDGES:

Sofronoff P and Mullins and Davis JJ

ORDERS:

Date of Orders: 29 April 2019

1.   Leave to appeal granted.

2.   Appeal allowed.

3.   Set aside the orders made in the Childrens Court on 26 February 2019.

4. The applicant be released under the supervision of the Chief Executive for a period of 6 months, and comply with the requirements set out in s 193(1) of the Youth Justice Act 1992, and report to the Chief Executive by 4 pm 1 May 2019, and abstain from consumption of alcohol or illicit drugs.

5.   No conviction recorded for any of these offences.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty in the Childrens Court to 21 counts and charges including armed robbery in company with personal violence, burglary and stealing and common assault – where the applicant was sentenced to 17 months detention on each count, served concurrently, to be released after serving 60 per cent, with time on remand declared as time served – where the applicant was in detention prior to sentence, in part serving other sentences, and in part on remand for the present offending – where the period of detention served in respect of other sentences is a relevant consideration going to the total impact of the sentence to be imposed – where the learned sentencing judge found the period of detention served in respect of other sentences was 81 days – where the applicant had served 146 days in detention in respect of other sentences – whether the sentencing discretion miscarried – whether the sentence imposed is manifestly excessive

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – CUSTODIAL ORDERS – where the applicant pleaded guilty in the Childrens Court to 21 counts and charges including armed robbery in company with personal violence, burglary and stealing and common assault – where the applicant was sentenced to 17 months detention on each count, served concurrently, to be released after serving 60 per cent, with time on remand declared as time served – where s 208 of the Youth Justice Act requires the learned sentencing judge to only make an order for detention if satisfied that no other sentence is appropriate – where the learned sentencing judge received a pre-sentence report identifying a restorative justice order or a conditional release order as viable alternatives to detention – where the learned sentencing judge…

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 MDD

Details

AGLC: R v MDD [2019] QCA 197
Case: [2019] QCA 197
Decision Date: 27 September 2019

CaseChat Overview and Summary

The applicant, MDD, was convicted in the Children's Court on 26 February 2019, following a guilty plea to 21 charges, including armed robbery, burglary, stealing and common assault. The sentencing judge imposed a sentence of 17 months detention on each count, to be served concurrently, with release after serving 60 per cent, and time on remand declared as time served. MDD appealed against the sentence, arguing that it was manifestly excessive or inadequate, and that the sentencing process miscarried due to the failure of the judge to express reasons for imposing detention over other sentencing options.

The legal issues in the appeal concerned whether the sentencing discretion had miscarried due to the sentence being manifestly excessive, and whether the sentencing process miscarried because the judge did not provide reasons for imposing detention over other sentencing options. The applicant argued that the sentence was manifestly excessive because the judge did not adequately consider the time already served in detention for other sentences, and the judge did not provide reasons for imposing detention over other sentencing options, as required by section 208 of the Youth Justice Act.

The court found that the sentencing discretion had miscarried because the judge did not adequately consider the time already served in detention for other sentences, and the sentence imposed was manifestly excessive. The court also found that the sentencing process miscarried because the judge did not provide reasons for imposing detention over other sentencing options, as required by section 208 of the Youth Justice Act. The court noted that the pre-sentence report identified a restorative justice order or a conditional release order as viable alternatives to detention, but the judge did not provide reasons for not preferring these options to detention. The court held that the sentencing judge was required to express the reasons for imposing detention, rather than other sentencing options, in the sentencing remarks.

The court allowed the appeal and set aside the orders made in the Children's Court. The applicant was to be released under the supervision of the Chief Executive for a period of 6 months, and comply with the requirements set out in section 193(1) of the Youth Justice Act 1992, and report to the Chief Executive by 4 pm 1 May 2019, and abstain from consumption of alcohol or illicit drugs. No conviction was recorded for any of the offences.

Orders

Orders of the court

Date of Orders: 29 April 2019

1. Leave to appeal granted.

2. Appeal allowed.

3. Set aside the orders made in the Childrens Court on 26 February 2019.

4. The applicant be released under the supervision of the Chief Executive for a period of 6 months, and comply with the requirements set out in s 193(1) of the Youth Justice Act 1992, and report to the Chief Executive by 4 pm 1 May 2019, and abstain from consumption of alcohol or illicit drugs.

5. No conviction recorded for any of these offences.

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 MDD [2019] QCA 197
PARTIES:	R v MDD (applicant)
FILE NO/S:	CA No 74 of 2019 DC No 3 of 2019 DC No 5 of 2019 DC No 9 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Rockhampton – Date of Sentence: 26 February 2019 (Burnett DCJ)
DELIVERED ON:	Date of Orders: 29 April 2019 Date of Publication of Reasons: 27 September 2019
DELIVERED AT:	Brisbane
HEARING DATE:	29 April 2019
JUDGES:	Sofronoff P and Mullins and Davis JJ
ORDERS:	Date of Orders: 29 April 2019 1. Leave to appeal granted. 2. Appeal allowed. 3. Set aside the orders made in the Childrens Court on 26 February 2019. 4. The applicant be released under the supervision of the Chief Executive for a period of 6 months, and comply with the requirements set out in s 193(1) of the Youth Justice Act 1992, and report to the Chief Executive by 4 pm 1 May 2019, and abstain from consumption of alcohol or illicit drugs. 5. No conviction recorded for any of these offences.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty in the Childrens Court to 21 counts and charges including armed robbery in company with personal violence, burglary and stealing and common assault – where the applicant was sentenced to 17 months detention on each count, served concurrently, to be released after serving 60 per cent, with time on remand declared as time served – where the applicant was in detention prior to sentence, in part serving other sentences, and in part on remand for the present offending – where the period of detention served in respect of other sentences is a relevant consideration going to the total impact of the sentence to be imposed – where the learned sentencing judge found the period of detention served in respect of other sentences was 81 days – where the applicant had served 146 days in detention in respect of other sentences – whether the sentencing discretion miscarried – whether the sentence imposed is manifestly excessive CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – CUSTODIAL ORDERS – where the applicant pleaded guilty in the Childrens Court to 21 counts and charges including armed robbery in company with personal violence, burglary and stealing and common assault – where the applicant was sentenced to 17 months detention on each count, served concurrently, to be released after serving 60 per cent, with time on remand declared as time served – where s 208 of the Youth Justice Act requires the learned sentencing judge to only make an order for detention if satisfied that no other sentence is appropriate – where the learned sentencing judge received a pre-sentence report identifying a restorative justice order or a conditional release order as viable alternatives to detention – where the learned sentencing judge…