R v Owen

Case [2015] QCA 46 10 April 2015

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Owen [2015] QCA 46

PARTIES:

R
v
OWEN, Benjamin Troy
(applicant)

FILE NO/S:

CA No 239 of 2014
DC No 265 of 2014
DC No 264 of 2014
DC No 194 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

10 April 2015

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2015

JUDGES:

Morrison JA and Douglas and Peter Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Grant the application for leave to appeal.

2.   Allow the appeal.

3.   Vary the orders made in the District Court on 20 August 2014, by varying the parole eligibility date from the 31 October 2015 to 10 October 2015.

4.   Otherwise confirm the orders made 20 August 2014 in the District Court.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – PARITY BETWEEN CO-OFFENDERS – GENERAL PRINCIPLES – where the first co-offender was sentenced on an incomplete view of the facts – where the court sentencing the second co-offender was informed of the complete circumstances of the offending – whether the second sentencing judge should approach the sentencing by treating the co-offender’s sentence as significantly less relevant, or, depending on the degree of error, as irrelevant to the parity principle

Director of Public Prosecutions (Cth) v Peng [2014] VSCA 128, followed
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, followed
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, considered
Nguyen v The Queen [2010] VSCA 180, not followed
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, considered
R v Kite (1971) 2 SASR 94, followed
R v Phu Dinh, Julie Le, Van Le & Tri Ton [2008] VCC 1771, considered
R v Tiddy [1969] SASR 575, considered

COUNSEL:

F D Richards for the applicant
G P Cash for the respondent

SOLICITORS:

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

MORRISON JA: I have had the advantage of reading the draft reasons of Douglas J. I agree with those reasons, but wish to add some observations of my own.
The parity principle as explained in Postiglione v The Queen[1] is an aspect of equal justice, requiring that like be treated alike, but with due allowance being made for the differing circumstances of different offenders. As was said in R v Tiddy:[2]
“Where other things are equal persons concerned in the same crime should receive the same punishment; and where other things are not equal a due discrimination should be made.”
[1](1997) 189 CLR 295, at 301-302. (Postiglione)
[2][1969] SASR 575, at 577, per Bray CJ, Bright and Mitchell JJ.
Mr Owen’s co-offender, Mr Whatley, was fortunate to be sentenced by a learned magistrate who was not told all the relevant facts, and specifically, not…

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 Owen

Details

AGLC: R v Owen [2015] QCA 46
Case: [2015] QCA 46
Decision Date: 10 April 2015

CaseChat Overview and Summary

The case of R v Owen involved the defendant, Owen, who was convicted of criminal offences alongside a co-offender. The dispute centred on the sentencing of Owen and the principle of parity between co-offenders. The matter was brought before the court to determine whether the sentencing judge should consider the co-offender's sentence when sentencing Owen, given that the first co-offender's sentence was based on an incomplete view of the facts. The case was heard in the District Court, and Owen subsequently appealed the decision.

The legal issues that the court was required to decide included the extent to which the principle of parity between co-offenders should be applied in cases where one co-offender has been sentenced based on an incomplete view of the facts. The court had to determine whether the second sentencing judge should approach the sentencing of Owen by treating the co-offender’s sentence as significantly less relevant, or, depending on the degree of error, as irrelevant to the parity principle. This involved a detailed examination of the sentencing principles and the circumstances of the case, particularly the completeness of the information available at the time of sentencing the co-offender.

The court reasoned that the sentencing of the co-offender was based on a partial understanding of the facts, which affected the parity principle. Given that the sentencing judge for Owen was fully informed of the complete circumstances, the court concluded that the principle of parity should be applied with caution. The court held that the second sentencing judge should not rely heavily on the co-offender’s sentence, depending on the degree of error in the original sentencing. In this case, the error was significant enough to treat the co-offender’s sentence as largely irrelevant. Consequently, the court allowed the appeal and varied the parole eligibility date to reflect the correct application of the sentencing principles.

The court's final orders were to grant the application for leave to appeal, allow the appeal, and vary the parole eligibility date from 31 October 2015 to 10 October 2015. All other orders made by the District Court on 20 August 2014 were confirmed. This decision underscores the importance of ensuring that sentencing is based on a complete understanding of the facts and the application of the parity principle in cases involving co-offenders.

Orders

Orders of the court

1. Grant the application for leave to appeal.

2. Allow the appeal.

3. Vary the orders made in the District Court on 20 August 2014, by varying the parole eligibility date from the 31 October 2015 to 10 October 2015.

4. Otherwise confirm the orders made 20 August 2014 in the District Court.

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 Owen [2015] QCA 46

Most Recent Citation

R v Smith [2022] QCA 89

Cases citing this decision · 2 of 2 shown

R v Smith
[2022] QCA 89 Para 33

…m end of the range, but not to the point where the offender’s sentence is wholly inappropriate or outside the range”.[16] [15] R v Owen [2015] QCA 46 at [30] citing Director of Public Prosecutions (Cth) v Peng [2014] VSCA 128 at [36]-[37] which cited Taleb v The Queen [2014] VSCA 96 at [48] and [52]; and see Gre…
Young v White
[2016] QDC 159 Para 1

…ge of sentencing discretion, the principle does not apply so as to justify the passing of a further sentence suffering from the same defect: R v Owen [2015] QCA 46. [26] R v Cutts [2013] QCA 237 at [8]; R v Hurst [2014] QCA 168 at [33] +.…

View all 2 citing cases →

Cases cited in this decision · 14 of 14 shown

DPP (Cth) v Peng
[2014] VSCA 128 Para 12

…ot before us. If the applicant was treated justly he has no right to complain if someone else was treated more leniently than he deserved . ” [10][2014] VSCA 128, at [33]-[38]. [11] “I” (a child) v The State of Western Australia [2006] WASCA 9, at [65]- [66] per Steytler P; Steer v The Queen [2000] FCA 462 at [84]…
Taleb v The Queen
[2014] VSCA 96 Para 30

…encing th[e] applicant’.” [20][2010] VSCA 180 at [23]. [21][2014] VSCA 128 at [33]-[38]. See also Taleb v The Queen [2014] VSCA 96 at [48] and [52]. [22][2014] VSCA 128 at [36]-[37] (citations omitted).…
R v Lagana
[2012] SASCFC 135 Para 12

…Western Australia [2006] WASCA 9, at [65]- [66] per Steytler P; Steer v The Queen [2000] FCA 462 at [84], per Weinberg J; see also R v Lagana [2012] SASCFC 135, per White J at [40], [51], [53]-[59]. [12] R v Kite (1971) 2 SASR 94, at pg 96 per Bray CJ, Hogarth and Sangster JJ; “I” (a child) v The State of Western Au…
Green v The Queen; Quinn v The Queen
[2011] HCA 49

…on the degree of error, as irrelevant to the parity principle Director of Public Prosecutions (Cth) v Peng [2014] VSCA 128, followed Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, followed Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, considered Nguyen v The Queen [2010] VSCA 180, not followed Postiglione v Th…
Nguyen v The Queen
[2010] VSCA 180 Para 4

…was a mistake which operated to the advantage of the co-offender and, because of parity, it operates to the advantage of the appellant.”[5] [3][2010] VSCA 180, per Maxwell P and Weinberg JA. ( Nguyen ) [4]The sentencing remarks are in R v Phu Dinh, Julie Le, Van Le & Tri Ton [2008] VCC 1771. ( Ton ) [5] Nguyen at…
R v Kite
[2007] NZCA 385 Para 12

…The Queen [2000] FCA 462 at [84], per Weinberg J; see also R v Lagana [2012] SASCFC 135, per White J at [40], [51], [53]-[59]. [12] R v Kite (1971) 2 SASR 94, at pg 96 per Bray CJ, Hogarth and Sangster JJ; “I” (a child) v The State of Western Australia [2006] WASCA 9, at [65]- [66] per Steytler P; Steer v The Quee…
I (a child) v The State of Western Australia
[2006] WASCA 9 Para 12

…e else was treated more leniently than he deserved . ” [10][2014] VSCA 128, at [33]-[38]. [11] “I” (a child) v The State of Western Australia [2006] WASCA 9, at [65]- [66] per Steytler P; Steer v The Queen [2000] FCA 462 at [84], per Weinberg J; see also R v Lagana [2012] SASCFC 135, per White J at [40], [51], [5…
R v McKinless
[2004] QCA 280 Para 5

…count, the most serious of the many offences dealt with by him at the same time.[25] [24]See, eg, R v Bryant (2007) 173 A Crim R 88; R v McKinless [2004] QCA 280. [25]See R v Nagy [2004] 1 Qd R 63, 72-73 at [39].…
Yanko v The Queen
[2004] WASCA 37 Para 11

…annot be accepted: per Roskill L.J. in Reg. v Stroud ”.[9] [8] Lowe v The Queen (1984) 154 CLR 606, at 617. [9]See also Yanko v The Queen [2004] WASCA 37, at [41].…
Steer v The Queen
[2000] FCA 462 Para 12

…] VSCA 128, at [33]-[38]. [11] “I” (a child) v The State of Western Australia [2006] WASCA 9, at [65]- [66] per Steytler P; Steer v The Queen [2000] FCA 462 at [84], per Weinberg J; see also R v Lagana [2012] SASCFC 135, per White J at [40], [51], [53]-[59]. [12] R v Kite (1971) 2 SASR 94, at pg 96 per Bray CJ, H…
Siganto v the Queen
[1998] HCA 74 Para 14

…e sentence applicable to the offence.[15] That being so, it is irrational not to take into account an error in that respect. [15] Siganto v The Queen [1998] HCA 74, at [51]-[52].…
Postiglione v the Queen
[1997] HCA 26

…) 154 CLR 606; [1984] HCA 46, considered Nguyen v The Queen [2010] VSCA 180, not followed Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, considered R v Kite (1971) 2 SASR 94, followed R v Phu Dinh, Julie Le, Van Le & Tri Ton [2008] VCC 1771, considered R v Tiddy [1969] SASR 575, considered COUNSEL: F…
Lowe v R
[1984] HCA 46

…) v Peng [2014] VSCA 128, followed Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, followed Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, considered Nguyen v The Queen [2010] VSCA 180, not followed Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, considered R v Kite (1971) 2 SASR 94, followe…
The sentencing remarks are in R v Phu Dinh, Julie Le, Van Le & Tri Ton
[2008] VCC 1771 Para 4

…nt.”[5] [3][2010] VSCA 180, per Maxwell P and Weinberg JA. ( Nguyen ) [4]The sentencing remarks are in R v Phu Dinh, Julie Le, Van Le & Tri Ton [2008] VCC 1771. ( Ton ) [5] Nguyen at [23].…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Owen [2015] QCA 46
PARTIES:	R v OWEN, Benjamin Troy (applicant)
FILE NO/S:	CA No 239 of 2014 DC No 265 of 2014 DC No 264 of 2014 DC No 194 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	10 April 2015
DELIVERED AT:	Brisbane
HEARING DATE:	5 March 2015
JUDGES:	Morrison JA and Douglas and Peter Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant the application for leave to appeal. 2. Allow the appeal. 3. Vary the orders made in the District Court on 20 August 2014, by varying the parole eligibility date from the 31 October 2015 to 10 October 2015. 4. Otherwise confirm the orders made 20 August 2014 in the District Court.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – PARITY BETWEEN CO-OFFENDERS – GENERAL PRINCIPLES – where the first co-offender was sentenced on an incomplete view of the facts – where the court sentencing the second co-offender was informed of the complete circumstances of the offending – whether the second sentencing judge should approach the sentencing by treating the co-offender’s sentence as significantly less relevant, or, depending on the degree of error, as irrelevant to the parity principle Director of Public Prosecutions (Cth) v Peng [2014] VSCA 128, followed Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, followed Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, considered Nguyen v The Queen [2010] VSCA 180, not followed Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, considered R v Kite (1971) 2 SASR 94, followed R v Phu Dinh, Julie Le, Van Le & Tri Ton [2008] VCC 1771, considered R v Tiddy [1969] SASR 575, considered
COUNSEL:	F D Richards for the applicant G P Cash for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent