R v Michael (a pseudonym) - [2021] QCA 140

SUPREME COURT OF QUEENSLAND

CITATION:

R v Michael (a pseudonym) [2021] QCA 140

PARTIES:

R
v
MICHAEL (a pseudonym)
(applicant)

FILE NO/S:

CA No 7 of 2020
DC No 442 of 2019
DC No 199 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Brisbane – Date of Sentence: 29 November 2019 (Smith DCJ)

DELIVERED ON:

Date of Order: 13 April 2021
Date of Publication of Reasons: 29 June 2021

DELIVERED AT:

Brisbane

HEARING DATE:

13 April 2021

JUDGES:

Sofronoff P and Mullins JA and Bradley J

ORDERS:

Orders delivered: 13 April 2021

1.   Application for leave to appeal against sentence granted.

2.   Appeal allowed.

3.   Set aside the sentences imposed on count 3 on indictment 119 of 2017 and count 2 on indictment 442 of 2019 to the extent that a conviction was recorded, and in lieu, order that no conviction be recorded.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on indictment 119 of 2019 to count 1 of robbery with personal violence, count 2 of affray and count 3 of robbery in company with personal violence – where the applicant was convicted on indictment 442 of 2019 to count 2 of robbery in company with personal violence – where the applicant was a juvenile at the time of the offending and pleaded guilty to all counts – where the applicant was sentenced under the Youth Justice Act 1992 with a conviction recorded for all counts – where the applicant submits that the sentencing judge erred in starting from the position that a conviction be recorded and that it was for the applicant to establish that it ought not to be – where the applicant submits in the alternative that the sentencing judge erred because sufficient regard was not had to the mitigating factors or the time spent in detention – whether the recording of a conviction on count 3 of indictment 119 of 2019 and count 2 of indictment 442 of 2019 rendered the sentences on those counts manifestly excessive

Youth Justice Act 1992 (Qld), s 183, s 184

R v SCU[2017] QCA 198, cited

COUNSEL:

A M Hoare for the applicant
D Kovac for the respondent

SOLICITORS:

Bell Dore Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: Count 1 on indictment 199 of 2017 charged the applicant with an offence of robbery with personal violence. The maximum penalty under the Youth Justice Act1992 is 10 years’ detention. On the night of 23 December 2016, when he committed this offence, the applicant was 14 years old.[1] He and a friend were at the Buranda railway station where they approached the complainant, a 35 year old man. They asked him for a cigarette and the complainant rolled cigarettes for the applicant and his friend. The applicant then asked 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 Michael (a pseudonym)

Details

AGLC: R v Michael (a pseudonym) [2021] QCA 140
Case: [2021] QCA 140
Decision Date: 29 June 2021

CaseChat Overview and Summary

The applicant, Michael, was convicted on indictment 119 of 2019 to count 1 of robbery with personal violence, count 2 of affray and count 3 of robbery in company with personal violence, and on indictment 442 of 2019 to count 2 of robbery in company with personal violence. Michael, who was a juvenile at the time of the offending, pleaded guilty to all counts and was sentenced under the Youth Justice Act 1992. Michael appealed against the sentence, contending that the sentencing judge erred in starting from the position that a conviction be recorded and that it was for Michael to establish that it ought not to be. In the alternative, Michael argued that the sentencing judge erred because sufficient regard was not had to the mitigating factors or the time spent in detention. The appeal was heard by the court of appeal, which had to determine whether the recording of a conviction on count 3 on indictment 119 of 2019 and count 2 on indictment 442 of 2019 rendered the sentences on those counts manifestly excessive.

The court of appeal found that the sentencing judge had erred in starting from the position that a conviction be recorded and that it was for Michael to establish that it ought not to be. The court noted that this approach was contrary to the principles set out in the Youth Justice Act 1992, which emphasised rehabilitation and reintegration of young offenders. The court also found that the sentencing judge had not given sufficient regard to the mitigating factors and the time spent in detention. The court held that these errors resulted in the sentences being manifestly excessive, and granted leave to appeal against the sentence.

The court of appeal allowed the appeal and set aside the sentences imposed on count 3 on indictment 119 of 2017 and count 2 on indictment 442 of 2019 to the extent that a conviction was recorded, and in lieu, ordered that no conviction be recorded. The court noted that this outcome was consistent with the principles of the Youth Justice Act 1992 and the need to provide appropriate sentencing options for young offenders. The court also noted that the sentences imposed on the other counts were appropriate and did not require alteration.

Orders

Orders of the court

Orders delivered: 13 April 2021

1. Application for leave to appeal against sentence granted.

2. Appeal allowed.

3. Set aside the sentences imposed on count 3 on indictment 119 of 2017 and count 2 on indictment 442 of 2019 to the extent that a conviction was recorded, and in lieu, order that no conviction be recorded.

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 Michael (a pseudonym) [2021] QCA 140
PARTIES:	R v MICHAEL (a pseudonym) (applicant)
FILE NO/S:	CA No 7 of 2020 DC No 442 of 2019 DC No 199 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Brisbane – Date of Sentence: 29 November 2019 (Smith DCJ)
DELIVERED ON:	Date of Order: 13 April 2021 Date of Publication of Reasons: 29 June 2021
DELIVERED AT:	Brisbane
HEARING DATE:	13 April 2021
JUDGES:	Sofronoff P and Mullins JA and Bradley J
ORDERS:	Orders delivered: 13 April 2021 1. Application for leave to appeal against sentence granted. 2. Appeal allowed. 3. Set aside the sentences imposed on count 3 on indictment 119 of 2017 and count 2 on indictment 442 of 2019 to the extent that a conviction was recorded, and in lieu, order that no conviction be recorded.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on indictment 119 of 2019 to count 1 of robbery with personal violence, count 2 of affray and count 3 of robbery in company with personal violence – where the applicant was convicted on indictment 442 of 2019 to count 2 of robbery in company with personal violence – where the applicant was a juvenile at the time of the offending and pleaded guilty to all counts – where the applicant was sentenced under the Youth Justice Act 1992 with a conviction recorded for all counts – where the applicant submits that the sentencing judge erred in starting from the position that a conviction be recorded and that it was for the applicant to establish that it ought not to be – where the applicant submits in the alternative that the sentencing judge erred because sufficient regard was not had to the mitigating factors or the time spent in detention – whether the recording of a conviction on count 3 of indictment 119 of 2019 and count 2 of indictment 442 of 2019 rendered the sentences on those counts manifestly excessive Youth Justice Act 1992 (Qld), s 183, s 184 R v SCU[2017] QCA 198, cited
COUNSEL:	A M Hoare for the applicant D Kovac for the respondent
SOLICITORS:	Bell Dore Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent