Legal Research
Cases
R v Mikaele

R v Mikaele

Case [2008] QCA 261 5 September 2008

Type to search within this case.

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mikaele [2008] QCA 261

PARTIES:

R
v
MIKAELE, Michael
(applicant)

FILE NO/S:

CA No 51 of 2008
SC No 3072 of 2007
DC No 919 of 2007
CC No 1282 of 2007
DC No 1868 of 2007
DC No 2099 of 2007
DC No 340 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

5 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

20 August 2008

JUDGES:

Keane JA, Mackenzie AJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – where the applicant plead guilty to doing grievous bodily harm with intent to do grievous bodily harm and was sentenced to nine years imprisonment with a serious violent offence declaration – where the applicant was 17 years old at the time of the offence – where the offence involved an unprovoked attack by a group of five youths upon a member of the public at a train station – where the applicant did not initiate the attack but punched, kicked and stomped on the complainant – where the applicant returned to inflict further violence on the unconscious complainant once his co-offenders had ceased their attack – where it was not possible to identify the extent of harm caused by the applicant alone – where it was argued that the offence was not beyond the norm for offences of grievous bodily harm with intent – whether the sentencing discretion to make a serious violent offence declaration miscarried – whether the head sentence should have been reduced to allow for the effect of the serious violent offence declaration – whether the sentence was manifestly excessive in all the circumstances

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PARITY – CO-OFFENDERS – GENERAL PRINCIPLES – where an adult co-offender was dealt with as a party to the offence under s 8 Criminal Code Act
1899 (Qld) – where the co-offender was sentenced on the basis that they were a party to the intent to do grievous bodily harm, rather than personally holding such intent – where the co-offender was sentenced to seven years imprisonment with parole eligibility after three years – where, as a consequence of the serious violent offence declaration, the applicant is unable to apply for parole before serving seven years and
two months imprisonment – whether, notwithstanding the
co-offender’s more limited basis of culpability, the sentences are disproportionate – whether the applicant has a justifiable sense of grievance

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS…

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 Mikaele

Details

AGLC: R v Mikaele [2008] QCA 261
Case: [2008] QCA 261
Decision Date: 5 September 2008

CaseChat Overview and Summary

The case of R v Mikaele involved an appeal by the applicant against his sentence for grievous bodily harm with intent, as well as his sentences for armed robbery and robbery with personal violence. The applicant had pleaded guilty to the charges and was sentenced to nine years imprisonment for the grievous bodily harm charge, with a serious violent offence declaration, and five years imprisonment on each of the robbery charges to be served concurrently. The applicant argued that the sentence was manifestly excessive, the head sentence should have been reduced to account for the serious violent offence declaration, and the sentences were disproportionate compared to those of his co-offenders.

The court considered whether the sentencing discretion to make a serious violent offence declaration miscarried, and whether the applicant's sentence should have been reduced to allow for the effect of the declaration. The court also examined whether the sentences were disproportionate given the applicant's co-offenders were sentenced on a more limited basis of culpability. Furthermore, the court considered whether the sentencing judge made sufficient allowance for mitigating factors, such as the applicant's prospects of rehabilitation and completion of courses in custody.

The court found that the applicant's arguments were not persuasive and dismissed the appeal. The court held that the sentence was not manifestly excessive, and the applicant's co-offenders' sentences were not directly comparable. The court also found that the sentencing judge had adequately considered the mitigating factors in the applicant's favour. The application for leave to appeal was refused.

Orders

Orders of the court

Application for leave to appeal refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Mikaele [2008] QCA 261

Most Recent Citation

R v Brannigan; R v Green [2009] QCA 271

Cases citing this decision · 15 of 15 shown

R v ZC
[2024] QCA 89 Para 9

…d). [10] R v Honeysett; ex parte A-G (Qld) [2010] QCA 212, [43] (Atkinson J, with whom the Chief Justice and Fraser JA agreed) citing R v Mikaele [2008] QCA 261, [26] (Mackenzie AJA, Keane JA and Douglas J agreeing).…
R v Smith
[2022] QCA 89 Para 15

…ppropriately made in one case but not made in the other, the principle of parity that would ordinarily apply has little scope for operation”. [30][2008] QCA 261 at [36]. [31](1999) 106 A Crim R 80; [1999] QCA 223.…
R v Walker
[2019] QCA 180 Para 27

…ing the victim with a paring knife. [29] R v Crossley (1999) 106 A Crim R 80 at [14]; see also R v Cowie [2005] 2 Qd R 533 at [15], and R v Mikaele [2008] QCA 261 at [36].…
R v Dang
[2018] QCA 331 Para 13

…between the relative criminality of each of the co-offenders in that case.” [38][2010] QCA 273. [39][2005] 2 Qd R 533; [2005] QCA 223. [40][2008] QCA 261 at [36].…
R v Hughes
[2017] QCA 178 Para 29

…ropriately made in one case but not made in the other, the principle of parity that would ordinarily apply has little scope for operation.” [20][2008] QCA 261 at [36]. [21]Mackenzie JA, with whom Keane JA and Douglas J concurred.…
R v Maksoud
[2016] QCA 115 Para 21

…is appropriately made in one case, but not in the other, the principle of parity that would ordinarily apply has little scope for operation.[60] [59][2008] QCA 261. [60]At [36].…
R v Latemore
[2016] QCA 110 Para 30

…“significant penalty” so that the sentence, although a heavy one, was not outside the sentencing discretion.[12] [8][2006] QCA 240. [9][2008] QCA 261. [10][2010] QCA 212. [11][2011] QCA 383. [12][2006] QCA 240, [24].…
R v Keen
[2015] QCA 97 Para 23

…kicked him about the head. His companion was also assaulted. The applicant got back into his vehicle and reversed it over the complainant. [4][2008] QCA 261. [5][2008] QCA 55. [6][2010] QCA 337. [7][2005] QCA 148.…
R v Hart
[2012] QCA 38 Para 1

…Counsel for the respondent referred to four cases which warrant the view that this overall penalty was not manifestly excessive. They are R v Mikaele [2008] QCA 261, R v Sielaff [1995] QCA 318, R v Eade [2005] QCA 148 and R v Hasanovic [2010] QCA 337.…
R v Neilson
[2011] QCA 369 Para 1

…three Court of Appeal decisions that emphasised the importance of deterrence in sentencing for random acts of violence in public places: R v Mikaele [2008] QCA 261 at [29]-[31]; R v Tupou; ex parte A‑G (Qld) [2005] QCA 179 at p 10; and R v Bryan; ex parte A-G (Qld) [2003] QCA 18 at [30].…
R v Thomason; ex parte A-G (Qld)
[2011] QCA 9 Para 1

…edges that the respondent was 18 years of age by contrast with Bryan’s age of 21, which is not a great disparity, and as pointed out in R v Mikaele [2008] QCA 261, paras 26-7, in relation to crimes of violence, the significance of the youth of the offender has been diminished by amendments made to s 9 of the Pena…
R v Hasanovic
[2010] QCA 337 Para 1

…Eade [6] , R v Nguyen [7] and R v Mikaele [8] to which later reference will be made. [5]Record book 1-22/50. [6][2005] QCA 148. [7][2006] QCA 542. [8][2008] QCA 261.…
R v Meerdink
[2010] QCA 273

…im R 80; [1999] QCA 223, considered R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, considered R v Mikaele [2008] QCA 261, considered COUNSEL: C W Heaton for the applicant G Cummings for the respondent SOLICITORS: Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for t…
R v Honeysett; ex parte
[2010] QCA 212 Para 1

…As to youth, while obviously it remains a relevant consideration ( R v Mikaele [2008] QCA 261, paras 26-28), its significance is diminished by s 9(4) of the Penalties and Sentences Act because of the violent nature of the offending. In this case, among the factors to which the sentencing court was bound to give p…
R v Brannigan; R v Green
[2009] QCA 271 Para 1

…eclare the offence to be a serious violent offence may lead to a refusal to make the declaration. The present was not such a case. [10]Cf R v Mikaele [2008] QCA 261 at [32].…

View all 15 citing cases →

Cases cited in this decision · 15 of 15 shown

R v Janz
[2008] QCA 55 Para 1

…ed R v Bird and Schipper (2000) 110 A Crim R 394; [2000] QCA 94 where Schipper had just turned 18 and the declaration was discretionary, and R v Janz [2008] QCA 55, where he was 19 and the declaration automatic.…
R v Nguyen
[2006] QCA 542 Para 1

…person convicted of the same offence were R v Eade [2005] QCA 148, where the offender was 17 and a half and the declaration automatic, and R v Nguyen [2006] QCA 542, where the offender was 23 and the declaration discretionary. To these may be added R v Bird and Schipper (2000) 110 A Crim R 394; [2000] QCA 94 wher…
R v McDougall and Collas
[2006] QCA 365 Para 1

…ies. However, they came about as the result of a joint attack which the applicant did not initiate. Unlike R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365 it was spontaneous rather than a premeditated act of revenge. Nor did it involve weapons.…
R v Price
[2006] QCA 180 Para 1

…have the weight it once had, before the principles in s 9(2) were made inapplicable to offences of violence ( R v Lovell [1999] 2 Qd R 79; R v Price [2006] QCA 180).…
R v Tupou; Ex Parte A-G (Qld)
[2005] QCA 179 Para 1

…In R v Tupou; ex parte A-G (Qld) [2005] QCA 179, de Jersey CJ said the following:…
R v Eade
[2005] QCA 148 Para 1

…Examples cited by the Crown of instances where a declaration had been made in the case of a young person convicted of the same offence were R v Eade [2005] QCA 148, where the offender was 17 and a half and the declaration automatic, and R v Nguyen [2006] QCA 542, where the offender was 23 and the declaration dis…
R v Tuki
[2004] QCA 482 Para 1

…an offence committed in broadly comparable circumstances, a sentence of no more than four years was appropriate. He referred particularly to R v Tuki [2004] QCA 482, where a sentence of four years was held not to be manifestly excessive for an offence of robbery, while armed and in company, of a store. The offend…
R v Bryan; ex parte Attorney-General
[2003] QCA 18 Para 1

…R v Bryan; ex parte A-G (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, Williams JA said:…
R v Keating
[2002] QCA 19 Para 1

…The respondent referred to two authorities in support of the sentence. R v Keating [2002] QCA 19 involved a single offender who, over a period of nine days, committed nine robberies or attempted robberies of small businesses, using an apparently blood-filled syringe. He was also sentenced for fraud, unlawfully u…
R v Bird and Schipper
[2000] QCA 94 Para 1

…yen [2006] QCA 542, where the offender was 23 and the declaration discretionary. To these may be added R v Bird and Schipper (2000) 110 A Crim R 394; [2000] QCA 94 where Schipper had just turned 18 and the declaration was discretionary, and R v Janz [2008] QCA 55, where he was 19 and the declaration automatic.…
R v Moss
[1999] QCA 426 Para 1

…all, is a worse case; one aspect particularly focused on was the fear of harm generated by the use of a blood-filled syringe as a weapon. In R v Moss [1999] QCA 426, where there was a single offender and the use of a knife to menace the employee of a video store, this Court substituted five years imprisonment for…
R v Taylor & Napatali; ex parte A-G (Qld)
[1999] QCA 323 Para 1

…than a requirement to serve some time in actual custody (eg. R v Taylor & Napatali; ex parte Attorney-General of Queensland (1999) 106 A Crim R 578; [1999] QCA 323). It is also a factor to be taken into consideration in deciding whether the sentence is manifestly excessive in that a serious violent offence decla…
R v Crossley
[1999] QCA 223 Para 1

…ht brings into focus the significant difference between the nature of his offending and Isaako’s. Further, R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223 is authority for the conclusion that, once a serious violent offence declaration is appropriately made in one case but not made in the other, the principle…
R v Bojovic
[1999] QCA 206

…0] QCA 94, cited R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206, cited R v Bryan; ex parte A-G (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, cited R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223, cited R v Eade [2005] QCA 148, cited R v Janz [2008] QCA 55, cited R v Keating [2002] QCA 19, distinguished R v Lov…
R v Lovell
[1998] QCA 36

…19, distinguished R v Lovell [1999] 2 Qd R 79; [1998] QCA 36, cited R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, distinguished R v Moss [1999] QCA 426, cited R v Nguyen [2006] QCA 542, cited R v Price [2006] QCA 180, cited R v Taylor & Napatali; ex parte Attorney-General of Queensland (1999) 106 A…

Legislation cited in this decision · 2

Penalties and Sentences Act 1992 (Qld)
9(1)(c), 9(3) 3 mentions (from Para 1)
Criminal Code Act 1899 (Qld)
8 2 mentions

CITATION:	R v Mikaele [2008] QCA 261
PARTIES:	R v MIKAELE, Michael (applicant)
FILE NO/S:	CA No 51 of 2008 SC No 3072 of 2007 DC No 919 of 2007 CC No 1282 of 2007 DC No 1868 of 2007 DC No 2099 of 2007 DC No 340 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	5 September 2008
DELIVERED AT:	Brisbane
HEARING DATE:	20 August 2008
JUDGES:	Keane JA, Mackenzie AJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – where the applicant plead guilty to doing grievous bodily harm with intent to do grievous bodily harm and was sentenced to nine years imprisonment with a serious violent offence declaration – where the applicant was 17 years old at the time of the offence – where the offence involved an unprovoked attack by a group of five youths upon a member of the public at a train station – where the applicant did not initiate the attack but punched, kicked and stomped on the complainant – where the applicant returned to inflict further violence on the unconscious complainant once his co-offenders had ceased their attack – where it was not possible to identify the extent of harm caused by the applicant alone – where it was argued that the offence was not beyond the norm for offences of grievous bodily harm with intent – whether the sentencing discretion to make a serious violent offence declaration miscarried – whether the head sentence should have been reduced to allow for the effect of the serious violent offence declaration – whether the sentence was manifestly excessive in all the circumstances CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PARITY – CO-OFFENDERS – GENERAL PRINCIPLES – where an adult co-offender was dealt with as a party to the offence under s 8 Criminal Code Act 1899 (Qld) – where the co-offender was sentenced on the basis that they were a party to the intent to do grievous bodily harm, rather than personally holding such intent – where the co-offender was sentenced to seven years imprisonment with parole eligibility after three years – where, as a consequence of the serious violent offence declaration, the applicant is unable to apply for parole before serving seven years and two months imprisonment – whether, notwithstanding the co-offender’s more limited basis of culpability, the sentences are disproportionate – whether the applicant has a justifiable sense of grievance CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS…