R v MKL

Case [2016] QCA 249 7 October 2016

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SUPREME COURT OF QUEENSLAND

CITATION:

R v MKL [2016] QCA 249

PARTIES:

R
v
MKL
(applicant)

FILE NO/S:

CA No 81 of 2016
DC No 1 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Charleville – Date of Sentence: 8 March 2016

DELIVERED ON:

7 October 2016

DELIVERED AT:

Brisbane

HEARING DATE:

21 June 2016

JUDGES:

Fraser and Morrison JJA and Peter Lyons J
Separate reasons for judgment of each member of the Court, Fraser and Morrison JJA concurring as to the orders made, Peter Lyons J dissenting

ORDERS:
1.   The application for leave to appeal is allowed.

2.   The appeal is allowed.

3.   The orders made on 8 March 2016 are set aside to the extent that they ordered that the applicant perform 30 hours of community service.

4.   Otherwise the sentence imposed on 8 March 2016 is confirmed.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to two years’ probation and 30 hours of community service for the offence of breaking and entering premises and stealing – where the applicant was 13 and a half years old at the time of the offence – where the applicant broke into the offices of a community service organisation and stole $2 in coins, a set of headphones, and a set of keys – where the applicant had a prior criminal history of break and enter and trespass and injuring animals – where the applicant spent 61 days in custody before being released on bail in relation to other charges as well as for the present offence – where the learned trial judge did not take the presentence custody into account when sentencing for this offence, on the basis that it could be taken into account in the subsequent charges – where the applicant contends that the learned trial judge erred by not taking into account the presentence custody, as if the applicant were acquitted of the subsequent charges the presentence custody would never be taken into account and therefore the sentence was manifestly excessive – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 159A
Youth Justice Act 1992 (Qld), s 150, s 218

Geale v Tasmania (2009) 18 Tas R 338; (2009) 195 A Crim R 252; [2009] TASSC 28, cited
R v Fabre[2008] QCA 386, considered
R v H[2002] QCA 265, considered
R v Hutton, unreported, 31 August 1998, considered
R v HY[2005] QCA 163, considered
R v J[2002] QCA 227, considered
R v Lappan[2015] QCA 180, cited
R v Maksoud[2016] QCA 115, cited
R v Simon, unreported, 15 July 1997, considered

COUNSEL:

K Prskalo for the applicant
S J Farnden for the respondent

SOLICITORS:

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

FRASER JA: I agree…

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 MKL

Details

AGLC: R v MKL [2016] QCA 249
Case: [2016] QCA 249
Decision Date: 7 October 2016

CaseChat Overview and Summary

The case of R v MKL involves an appeal against the sentence imposed by the Children's Court on the applicant for the offence of breaking and entering premises and stealing. The applicant, who was 13 and a half years old at the time of the offence, broke into the offices of a community service organisation and stole $2 in coins, a set of headphones, and a set of keys. The applicant had a prior criminal history and spent 61 days in custody before being released on bail. The trial judge did not take the presentence custody into account when sentencing for this offence, as it could be taken into account in the subsequent charges. The applicant contends that the sentence was manifestly excessive.

The legal issues before the court were whether the sentence was manifestly excessive and whether the trial judge erred by not taking into account the presentence custody. The court considered the appropriate period for probation and the applicant's rehabilitation, and found that a period of probation longer than 12 months would not reflect the consistent application of sentencing principles. The court also noted the applicant's conduct recorded in the Youth Justice Service Centre, particularly since his release in August 2015.

The court concluded that the application for leave to appeal against sentence should be granted, and the sentence imposed on the applicant should be replaced with a sentence that he be subject to a probation order for a period of 12 months from the date of the sentence in the Children's Court. The appeal was allowed and the orders made on 8 March 2016 were set aside to the extent that they ordered the applicant to perform 30 hours of community service. The sentence imposed on 8 March 2016 was otherwise confirmed.

Orders

Orders of the court

1. The application for leave to appeal is allowed.

2. The appeal is allowed.

3. The orders made on 8 March 2016 are set aside to the extent that they ordered that the applicant perform 30 hours of community service.

4. Otherwise the sentence imposed on 8 March 2016 is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I agree with Morrison JA that an important consideration focused in the present case is the applicant’s rehabilitation. Nevertheless, probation is a form of punishment, and as the decision in R v HY demonstrates, the period for which a child is subject to a probation order is some measure of the extent of the punishment. The Court considered that the applicant in that case would benefit from probation. There is no reason to think that that was not also true of the applicant in Simon. Such a consideration can not provide justification for the maximum period of probation which may be imposed. I also bear in mind the applicant’s conduct recorded in the Youth Justice Service Centre, particularly since his release in August 2015. Bearing in mind the period he spent in custody, and the similarities between this case and Simon, it seems to me appropriate to replace the orders of the sentencing judge with an order that the applicant be released subject to a probation order for a period of 12 months.Conclusion In my respectful opinion, in light of the cases to which we have been referred, a period of probation longer than 12 months would not reflect the consistent application of sentencing principles. It would result in inexplicable differences between the sentence imposed in this case, and others imposed by this Court, particularly in Simon and in HY.The application for leave to appeal against sentence should be granted, and the sentence imposed on the applicant should be replaced with a sentence that he be subject to a probation order for a period of 12 months from the date of the sentence in the Childrens Court.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

R v MKL [2016] QCA 249

Most Recent Citation

R v Houkamau [2016] QCA 328

Cases Citing This Decision

R v Atasoy [2023] QCA 121
Citation 1 (Para 18)

…ion to plead not guilty, was inconsistent with the presumption of innocence to which the applicant was entitled.” [18][2008] QCA 386, [14]. [19][2016] QCA 249, [28].…
Powley v Queensland Police Service [2017] QDC 152
Citation 2 (Para 1)

…priate in the circumstances to disregard the non-declarable time spent on remand.[5] [4]Sentencing remarks, p7 L 39 – p8 L 10. [5]See R v MKL [2016] QCA 249, [24]-[25].…
R v Houkamau [2016] QCA 328
Citation 3 (Para 39)

…arm count, with a parole eligibility date of 21 July 2017 and 45 days of pre-sentence custody declared as time already served under the sentence. [13][2016] QCA 249 at [24]-[25] per Morrison JA, with whom Fraser JA agreed.…

See all citing cases →

Cases Cited

R v Maksoud [2016] QCA 115
Citation 1 (Para 26)

…The decision in Fabre has been followed in this State, and elsewhere.[17] [17] R v Lappan [2015] QCA 180, at [19]; R v Maksoud [2016] QCA 115, at [40]-[42]; Geale v Tasmania [2009] TASSC 28, at [18], [60]-[63].…
R v Lappan [2015] QCA 180
Citation 2 (Para 26)

…The decision in Fabre has been followed in this State, and elsewhere.[17] [17] R v Lappan [2015] QCA 180, at [19]; R v Maksoud [2016] QCA 115, at [40]-[42]; Geale v Tasmania [2009] TASSC 28, at [18], [60]-[63].…
R v Illin [2014] QCA 285
Citation 3 (Para 29)

…] Maksoud at [42], citing Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 per French CJ, Hayne, Bell and Keane JJ at [35], [42]; R v Illin [2014] QCA 285 per Fraser JA at [21]. Re-sentencing…
Kentwell v The Queen [2014] HCA 37
Citation 4 (Para 29)

…te and independent exercise of its discretion” that no different sentence should be passed.[18] [18] Maksoud at [42], citing Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 per French CJ, Hayne, Bell and Keane JJ at [35], [42]; R v Illin [2014] QCA 285 per Fraser JA at [21]. Re-sentencing…
Hili v The Queen [2010] HCA 45
Citation 5 (Para 20)

…See s 150(1)(a). [29]See Markarian v The Queen (2005) 228 CLR 357 at [27]. [30](2001) 207 CLR 584 at [6]; cited with approval in Hili v The Queen (2010) 242 CLR 520 at [47].…
Geale v Tasmania [2009] TASSC 28
Citation 6

…ntence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 159A Youth Justice Act 1992 (Qld), s 150, s 218 Geale v Tasmania (2009) 18 Tas R 338; (2009) 195 A Crim R 252; [2009] TASSC 28, cited R v Fabre [2008] QCA 386, considered R v H [2002] QCA 265, considered R v Hutton , unreported, 31 August 1998, cons…
R v Fabre [2008] QCA 386
Citation 7 (Para 24)

…able a sentencing court retains a discretion to take the period of pre-sentence custody into account in arriving at the appropriate sentence.[12] [11][2008] QCA 386. [12] Fabre at [11] per Fraser JA, Keane and Muir JJA concurring.…
Markarian v The Queen [2005] HCA 25
Citation 8 (Para 20)

…ically fair, and that involves, amongst other things, reasonable consistency.” [27]See s 2(b). [28]See s 150(1)(a). [29]See Markarian v The Queen (2005) 228 CLR 357 at [27]. [30](2001) 207 CLR 584 at [6]; cited with approval in Hili v The Queen (2010) 242 CLR 520 at [47].…
R v Hy [2005] QCA 163
Citation 9 (Para 16)

…Reference was made to comparable cases such as R v HY ,[4] R v H ,[5] R v Hutton ,[6] R v Simon ,[7] and R v J .[8] [4][2005] QCA 163. [5][2002] QCA 265. [6]Unreported, 31 August 1998. [7]Unreported, 15 July 1997. [8][2002] QCA 227. Discussion…
R v H [2002] QCA 265
Citation 10 (Para 16)

…Reference was made to comparable cases such as R v HY ,[4] R v H ,[5] R v Hutton ,[6] R v Simon ,[7] and R v J .[8] [4][2005] QCA 163. [5][2002] QCA 265. [6]Unreported, 31 August 1998. [7]Unreported, 15 July 1997. [8][2002] QCA 227. Discussion…
R v J [2002] QCA 227
Citation 11 (Para 16)

…5] R v Hutton ,[6] R v Simon ,[7] and R v J .[8] [4][2005] QCA 163. [5][2002] QCA 265. [6]Unreported, 31 August 1998. [7]Unreported, 15 July 1997. [8][2002] QCA 227. Discussion…
Wong v The Queen [2001] HCA 64
Citation 12 (Para 20)

…amongst other things, reasonable consistency.” [27]See s 2(b). [28]See s 150(1)(a). [29]See Markarian v The Queen (2005) 228 CLR 357 at [27]. [30](2001) 207 CLR 584 at [6]; cited with approval in Hili v The Queen (2010) 242 CLR 520 at [47].…

Legislation Cited

Penalties and Sentences Act 1992 (Qld) 159A
2 mentions (from Para 20)
Youth Justice Act 1992 (Qld) 150
2 mentions (from Para 19)

CITATION:	R v MKL [2016] QCA 249
PARTIES:	R v MKL (applicant)
FILE NO/S:	CA No 81 of 2016 DC No 1 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Charleville – Date of Sentence: 8 March 2016
DELIVERED ON:	7 October 2016
DELIVERED AT:	Brisbane
HEARING DATE:	21 June 2016
JUDGES:	Fraser and Morrison JJA and Peter Lyons J Separate reasons for judgment of each member of the Court, Fraser and Morrison JJA concurring as to the orders made, Peter Lyons J dissenting
ORDERS:	1. The application for leave to appeal is allowed. 2. The appeal is allowed. 3. The orders made on 8 March 2016 are set aside to the extent that they ordered that the applicant perform 30 hours of community service. 4. Otherwise the sentence imposed on 8 March 2016 is confirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to two years’ probation and 30 hours of community service for the offence of breaking and entering premises and stealing – where the applicant was 13 and a half years old at the time of the offence – where the applicant broke into the offices of a community service organisation and stole $2 in coins, a set of headphones, and a set of keys – where the applicant had a prior criminal history of break and enter and trespass and injuring animals – where the applicant spent 61 days in custody before being released on bail in relation to other charges as well as for the present offence – where the learned trial judge did not take the presentence custody into account when sentencing for this offence, on the basis that it could be taken into account in the subsequent charges – where the applicant contends that the learned trial judge erred by not taking into account the presentence custody, as if the applicant were acquitted of the subsequent charges the presentence custody would never be taken into account and therefore the sentence was manifestly excessive – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 159A Youth Justice Act 1992 (Qld), s 150, s 218 Geale v Tasmania (2009) 18 Tas R 338; (2009) 195 A Crim R 252; [2009] TASSC 28, cited R v Fabre[2008] QCA 386, considered R v H[2002] QCA 265, considered R v Hutton, unreported, 31 August 1998, considered R v HY[2005] QCA 163, considered R v J[2002] QCA 227, considered R v Lappan[2015] QCA 180, cited R v Maksoud[2016] QCA 115, cited R v Simon, unreported, 15 July 1997, considered
COUNSEL:	K Prskalo for the applicant S J Farnden for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent