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 2008DIVISION:
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 madeORDER:
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 grievanceCRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS…
Continue reading R v Mikaele
Sign in free to access the full text
- AGLC
- R v Mikaele [2008] QCA 261
- Case
- [2008] QCA 261
- Decision Date
CaseChat Overview and Summary
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.