R v MKM - [2018] QCA 233

SUPREME COURT OF QUEENSLAND

CITATION:

R v MKM [2018] QCA 233

PARTIES:

R
v
MKM
(applicant)

FILE NO/S:

CA No 301 of 2017
DC No 150 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Brisbane – Date of Sentence: 26 October 2017 (Farr SC DCJ)

DELIVERED ON:

25 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

23 July 2018

JUDGES:

Sofronoff P and Gotterson JA and Bond J

ORDER:

Leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – GROUNDS FOR INTERFERENCE – where the applicant pleaded guilty to a series of offences committed on several dates – where the applicant was 15 years old at the time of offending – where the learned sentencing judge determined that the most serious counts were one count of unlawful entry into a vehicle with intent to commit an indictable offence using actual violence, while armed with a dangerous weapon and in company with other person, and one count of robbery while armed with an offensive instrument – where the learned sentencing judge recorded convictions in respect of those two most serious counts – where the applicant had a lengthy criminal history – where the applicant was under the influence of methamphetamines at the time of offending – where the applicant demonstrated insight into her offending and remorse prior to sentencing – where the applicant submits that the learned sentencing judge erred in recording convictions in respect of the two most serious counts – where the applicant submits that the learned sentencing judge erred in considering that the seriousness of the offending overwhelmed other considerations – where the prima facie position is that a conviction should not be recorded in respect of offences committed by children – whether the learned sentencing judge erred in his Honour’s exercise of the sentencing discretion by recording convictions in respect of the two most serious counts

Youth Justice Act 1992 (Qld), s 184

R v SCU[2017] QCA 198, cited

COUNSEL:

A O’Brien for the applicant (pro bono)
D C Boyle for the respondent

SOLICITORS:

No appearance for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: On 26 October 2017 the applicant pleaded guilty before Farr SC DCJ to a series of offences committed on several dates. In respect of two of these offences Farr SC DCJ exercised his discretion to record convictions. The applicant now appeals only against his Honour’s decision to record those convictions and not against the penalties otherwise.
The offences to which the applicant pleaded guilty were contained in three indictments.[1] For the purposes of this application it is only necessary to refer to indictment 150/17 which contained the counts in respect of which convictions were recorded. The counts were as follows:
Count 1:Unlawful assault causing bodily harm while armed with an offensive instrument.
Count 2:Unlawful entry into a vehicle with intent to commit an indictable offence using actual violence, while armed with a dangerous…

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 MKM

Details

AGLC: R v MKM [2018] QCA 233
Case: [2018] QCA 233
Decision Date: 25 September 2018

CaseChat Overview and Summary

In the case of R v MKM, the applicant appealed against her conviction and sentence. MKM pleaded guilty to a series of offences committed on multiple dates, including unlawful entry into a vehicle with intent to commit an indictable offence using actual violence while armed with a dangerous weapon and in company with another person, and robbery while armed with an offensive instrument. The applicant was 15 years old at the time of offending and had a lengthy criminal history. The applicant was under the influence of methamphetamines during the commission of the offences. However, she demonstrated insight into her offending and remorse prior to sentencing. The learned sentencing judge recorded convictions in respect of the two most serious counts. The applicant argued that the learned sentencing judge erred in recording convictions in respect of the two most serious counts and in considering that the seriousness of the offending overwhelmed other considerations. The applicant contended that the prima facie position is that a conviction should not be recorded in respect of offences committed by children.

The legal issues before the court were whether the learned sentencing judge erred in his exercise of the sentencing discretion by recording convictions in respect of the two most serious counts and whether the seriousness of the offending overwhelmed other considerations. The court considered the relevant principles of sentencing for children and the discretion available to the sentencing judge in determining whether to record a conviction. The court noted that the sentencing judge had considered the applicant's age, insight, remorse, and the seriousness of the offending in determining whether to record a conviction. The court held that the learned sentencing judge did not err in his exercise of the sentencing discretion by recording convictions in respect of the two most serious counts. The court found that the seriousness of the offending was a significant factor in the sentencing decision and that the sentencing judge had appropriately considered the other relevant factors.

Accordingly, the appeal was dismissed, and leave to appeal was refused. The court upheld the conviction and sentence imposed by the learned sentencing judge. The court held that the learned sentencing judge had appropriately exercised his discretion in considering the seriousness of the offending and other relevant factors in determining whether to record a conviction. The court emphasised the importance of considering the age of the offender and the principles of sentencing for children, but ultimately found that the learned sentencing judge had not erred in his decision to record convictions in respect of the two most serious counts.

Orders

Orders of the court

Leave to appeal refused.

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 MKM [2018] QCA 233
PARTIES:	R v MKM (applicant)
FILE NO/S:	CA No 301 of 2017 DC No 150 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Brisbane – Date of Sentence: 26 October 2017 (Farr SC DCJ)
DELIVERED ON:	25 September 2018
DELIVERED AT:	Brisbane
HEARING DATE:	23 July 2018
JUDGES:	Sofronoff P and Gotterson JA and Bond J
ORDER:	Leave to appeal refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – GROUNDS FOR INTERFERENCE – where the applicant pleaded guilty to a series of offences committed on several dates – where the applicant was 15 years old at the time of offending – where the learned sentencing judge determined that the most serious counts were one count of unlawful entry into a vehicle with intent to commit an indictable offence using actual violence, while armed with a dangerous weapon and in company with other person, and one count of robbery while armed with an offensive instrument – where the learned sentencing judge recorded convictions in respect of those two most serious counts – where the applicant had a lengthy criminal history – where the applicant was under the influence of methamphetamines at the time of offending – where the applicant demonstrated insight into her offending and remorse prior to sentencing – where the applicant submits that the learned sentencing judge erred in recording convictions in respect of the two most serious counts – where the applicant submits that the learned sentencing judge erred in considering that the seriousness of the offending overwhelmed other considerations – where the prima facie position is that a conviction should not be recorded in respect of offences committed by children – whether the learned sentencing judge erred in his Honour’s exercise of the sentencing discretion by recording convictions in respect of the two most serious counts Youth Justice Act 1992 (Qld), s 184 R v SCU[2017] QCA 198, cited
COUNSEL:	A O’Brien for the applicant (pro bono) D C Boyle for the respondent
SOLICITORS:	No appearance for the applicant Director of Public Prosecutions (Queensland) for the respondent