R v Mladenovic; ex parte Attorney-General - [2006] QCA 176

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mladenovic; ex parte A-G (Qld) [2006] QCA 176

PARTIES:

R
v
MLADENOVIC, Reece Conrad
(respondent)

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 70 of 2006
DC No 3019 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

26 May 2006

DELIVERED AT:

Brisbane

HEARING DATE:

8 May 2006

JUDGES:

McMurdo P, White and Philippides JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal by Attorney-General against sentence dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OFFENCES AGAINST THE PERSON - where respondent pleaded guilty to unlawful wounding, assault occasioning bodily harm whilst armed and in company, and stealing - where respondent, together with co-offender, broke two bottles and threatened three male complainants waiting for a taxi at a service station at 3.00 am - where respondent struck one complainant in the face with a bottle causing him to bleed, wrestled and struck second complainant on the head with a bottle, then punched third complainant in the mouth with his fist - where respondent and co-offender returned three hours later and stole hot pies from the service station store - where respondent was sentenced to 12 months imprisonment to be served by intensive correction order - where Attorney-General is appealing against the sentence imposed on respondent - where respondent had a minor criminal history but not for like offences - where respondent was placed on 18 months probation and ordered to undergo treatment, a substance abuse programme and urine analysis for drug-related offences occurring after the offences subject of this appeal and while respondent was on bail for these offences - where respondent has responded satisfactorily to probation order and urine tests are consistent with his claim of abstention from drug use - where respondent has recently obtained a full-time apprenticeship and is considered suitable for further community-based orders - whether deliberately breaking bottles to use as weapons constituted offences so serious that a term of imprisonment should have been imposed - whether respondent's excellent prospects of rehabilitation outweigh the seriousness of his offences and the need to impose deterrent custodial sentence - whether sentence imposed by trial judge was manifestly inadequate

Penalties and Sentences Act 1992 (Qld), s 9(2), s 9(3), s 9(4), s 114

R v Dempsey and Perks; ex parte Attorney-General (Qld) [1999] QCA 520; CA No 328 and CA No 329 of 1999, 17 December 1999, followed

R v Dullroy and Yates; ex parte Attorney-General (Qld) [2005] QCA 219; CA Nos 111 and 112 of 2005, 24 June 2005, followed

R v Hays; ex parte Attorney-General (Qld) [1999] QCA 443; CA No 271 of 1999, 15 October 1999, cited

R v Hoffman; ex…

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.

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Details

Case: [2006] QCA 176
Decision Date: 26 May 2006

CaseChat Overview and Summary

The respondent pleaded guilty to unlawful wounding, assault occasioning bodily harm while armed and in company, and stealing. The respondent and a co-offender broke two bottles and threatened three male complainants waiting for a taxi at a service station at 3:00 am. The respondent struck one complainant in the face with a bottle causing him to bleed, wrestled and struck the second complainant on the head with a bottle, and then punched the third complainant in the mouth with his fist. The respondent and co-offender returned three hours later and stole hot pies from the service station store. The respondent was sentenced to 12 months imprisonment to be served by an intensive correction order. The Attorney-General is appealing against the sentence imposed on the respondent.

The court had to decide whether deliberately breaking bottles to use as weapons constituted offences so serious that a term of imprisonment should have been imposed. The court also had to decide whether the respondent's excellent prospects of rehabilitation outweigh the seriousness of his offences and the need to impose a deterrent custodial sentence. Finally, the court had to determine whether the sentence imposed by the trial judge was manifestly inadequate.

The court found that the offences were serious, particularly because the respondent deliberately broke bottles to use as weapons. However, the court also found that the respondent's prospects of rehabilitation were excellent, and that a term of imprisonment would not necessarily be the best way to achieve rehabilitation. The court also found that the sentence imposed by the trial judge was not manifestly inadequate. The appeal against sentence was dismissed.

Orders

Orders of the court

Appeal by Attorney-General against sentence dismissed

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.

CITATION:	R v Mladenovic; ex parte A-G (Qld) [2006] QCA 176
PARTIES:	R v MLADENOVIC, Reece Conrad (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 70 of 2006 DC No 3019 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	26 May 2006
DELIVERED AT:	Brisbane
HEARING DATE:	8 May 2006
JUDGES:	McMurdo P, White and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal by Attorney-General against sentence dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OFFENCES AGAINST THE PERSON - where respondent pleaded guilty to unlawful wounding, assault occasioning bodily harm whilst armed and in company, and stealing - where respondent, together with co-offender, broke two bottles and threatened three male complainants waiting for a taxi at a service station at 3.00 am - where respondent struck one complainant in the face with a bottle causing him to bleed, wrestled and struck second complainant on the head with a bottle, then punched third complainant in the mouth with his fist - where respondent and co-offender returned three hours later and stole hot pies from the service station store - where respondent was sentenced to 12 months imprisonment to be served by intensive correction order - where Attorney-General is appealing against the sentence imposed on respondent - where respondent had a minor criminal history but not for like offences - where respondent was placed on 18 months probation and ordered to undergo treatment, a substance abuse programme and urine analysis for drug-related offences occurring after the offences subject of this appeal and while respondent was on bail for these offences - where respondent has responded satisfactorily to probation order and urine tests are consistent with his claim of abstention from drug use - where respondent has recently obtained a full-time apprenticeship and is considered suitable for further community-based orders - whether deliberately breaking bottles to use as weapons constituted offences so serious that a term of imprisonment should have been imposed - whether respondent's excellent prospects of rehabilitation outweigh the seriousness of his offences and the need to impose deterrent custodial sentence - whether sentence imposed by trial judge was manifestly inadequate Penalties and Sentences Act 1992 (Qld), s 9(2), s 9(3), s 9(4), s 114 R v Dempsey and Perks; ex parte Attorney-General (Qld) [1999] QCA 520; CA No 328 and CA No 329 of 1999, 17 December 1999, followed R v Dullroy and Yates; ex parte Attorney-General (Qld) [2005] QCA 219; CA Nos 111 and 112 of 2005, 24 June 2005, followed R v Hays; ex parte Attorney-General (Qld) [1999] QCA 443; CA No 271 of 1999, 15 October 1999, cited R v Hoffman; ex…