R v PBD - [2019] QCA 59

SUPREME COURT OF QUEENSLAND

CITATION:

R v PBD [2019] QCA 59

PARTIES:

R
v
PBD
(applicant)

FILE NO/S:

CA No 30 of 2019
DC No 30 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Maroochydore – Date of Sentence: 23 January 2019 (Cash QC DCJ)

DELIVERED ON:

12 April 2019

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2019

JUDGES:

Sofronoff P and McMurdo JA and Wilson J

ORDERS:

1. Application for leave to appeal against sentence granted.

2. Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – RELEVANT FACTORS – where the applicant pled guilty to one count of grievous bodily harm – where the applicant was sentenced to 12 months detention to be released after serving 50 per cent – where s 162(2) of the Youth Justice Act 1992 (Qld) requires the sentencing judge to consider referring the offence to the chief executive for a restorative justice process to assist in imposing an appropriate sentence – whether the sentencing judge considered the referral under s 162(2) of the Youth Justice Act – whether another sentence should have been passed

Criminal Code (Qld), s 668E(3)
Youth Justice Act 1992 (Qld), s 35, s 36, s 162, s 163

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, cited

COUNSEL:

E P Mac Giolla Ri for the applicant
N Rees for the respondent

SOLICITORS:

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

SOFRONOFF P: This is an application for leave to appeal against sentence.
The applicant is a juvenile who was sentenced under the Youth Justice Act 1992 (Qld). At the hearing of the appeal the applicant was granted leave to amend his ground of appeal to the following ground:
“The learned sentencing judge erred by failing to consider referring the offence to the Chief Executive for a restorative justice process or, alternatively, failed properly to consider such a referral.”
The applicant was charged with doing unlawful grievous bodily harm to Nicholas William Donaldson on 22 July 2017. He pleaded guilty and Cash QC DCJ ordered that the applicant be detained for 12 months but that he be released from custody after serving 50 per cent of the period of detention.
The circumstances of the offence were these. The complainant, Mr Donaldson, had spent the evening of 21 July 2017 at the Wharf Tavern in Mooloolaba. He left at about 2.00 am on 22 July 2017. He was approached by the applicant and another male. They asked him for cigarettes. Mr Donaldson said he did not have any and continued walking. He walked for some distance and then, changing his mind about his destination, he turned around and this caused him to walk past the applicant and the other male again. The applicant said “Give me your pouch. Do you want to get bashed?” The complainant had a pouch of tobacco. He gave the pouch to the applicant. He then walked into…

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 PBD

Details

AGLC: R v PBD [2019] QCA 59
Case: [2019] QCA 59
Decision Date: 12 April 2019

CaseChat Overview and Summary

In the case of R v PBD, the applicant, PBD, was convicted of grievous bodily harm and sentenced to 12 months detention, with a non-parole period of 50 per cent. PBD subsequently applied for leave to appeal against the sentence, arguing that the sentencing judge had failed to consider referring the offence to the chief executive for a restorative justice process under section 162(2) of the Youth Justice Act 1992 (Qld). The appeal centred on whether the sentencing judge appropriately considered the referral to the chief executive and if another sentence should have been imposed.

The primary legal issue was whether the sentencing judge adequately considered the referral to the chief executive as required by section 162(2) of the Youth Justice Act. The court had to determine if this omission constituted a significant error in the sentencing process, impacting the fairness and appropriateness of the sentence imposed. Additionally, the court examined whether the failure to consider the restorative justice process resulted in a sentence that was inappropriate or unjust.

The court concluded that the sentencing judge had not sufficiently considered the referral to the chief executive for a restorative justice process, which was a significant error. However, the court found that this error did not substantially affect the overall fairness and appropriateness of the sentence. The court held that while the sentencing judge should have considered the restorative justice process, the sentence imposed was still appropriate in the circumstances. Consequently, the application for leave to appeal against the sentence was granted, but the appeal was ultimately dismissed.

The final orders of the court were to grant the application for leave to appeal against the sentence and to dismiss the appeal itself. The court acknowledged the procedural error but found that it did not impact the overall fairness and appropriateness of the sentence imposed.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal dismissed.

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 PBD [2019] QCA 59
PARTIES:	R v PBD (applicant)
FILE NO/S:	CA No 30 of 2019 DC No 30 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Maroochydore – Date of Sentence: 23 January 2019 (Cash QC DCJ)
DELIVERED ON:	12 April 2019
DELIVERED AT:	Brisbane
HEARING DATE:	11 April 2019
JUDGES:	Sofronoff P and McMurdo JA and Wilson J
ORDERS:	1. Application for leave to appeal against sentence granted. 2. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – RELEVANT FACTORS – where the applicant pled guilty to one count of grievous bodily harm – where the applicant was sentenced to 12 months detention to be released after serving 50 per cent – where s 162(2) of the Youth Justice Act 1992 (Qld) requires the sentencing judge to consider referring the offence to the chief executive for a restorative justice process to assist in imposing an appropriate sentence – whether the sentencing judge considered the referral under s 162(2) of the Youth Justice Act – whether another sentence should have been passed Criminal Code (Qld), s 668E(3) Youth Justice Act 1992 (Qld), s 35, s 36, s 162, s 163 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, cited
COUNSEL:	E P Mac Giolla Ri for the applicant N Rees for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent