R v PBE - [2019] QCA 185

SUPREME COURT OF QUEENSLAND

CITATION:

R v PBE [2019] QCA 185

PARTIES:

R
v
PBE
(applicant)

FILE NO/S:

CA No 347 of 2018
DC No 33 of 2018
DC No 38 of 2018
DC No 53 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Maroochydore – Date of Sentence: 11 December 2018 (Long SC DCJ)

DELIVERED ON:

13 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

16 April 2019

JUDGES:

Gotterson and McMurdo JJA and Douglas J

ORDERS:

1.   Grant leave to appeal.

2.   Allow the appeal.

3.   For the offence of committing a public nuisance, set aside the order that a conviction be recorded and order that the applicant be reprimanded for that offence.

4.   For the other offences for which an order was made that a conviction be recorded, set aside that order in each case.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the 17 year old applicant was found guilty on his own plea of attempted armed robbery and 14 other offences in the Childrens Court – where the sentencing judge in effect sentenced the applicant to serve 16 months in detention and recorded a conviction for all offences – where the prosecutor mistakenly submitted at sentence that the applicant had had convictions recorded previously – where the sentencing judge ordered that convictions be recorded on the basis that detention was ordered for some of the offences – whether the sentencing judge erred in the exercise of the sentencing discretion by considering the ordering of detention as a distinct reason to record convictions

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – OTHER MATTERS – where the 17 year old applicant was found guilty on his own plea of attempted armed robbery and 14 other offences in the Childrens Court – where the sentencing judge in effect sentenced the applicant to serve 16 months in detention and recorded a conviction for all offences – where the sentencing judge did not consider in their reasons whether the offences should be referred to the chief executive for a restorative justice process under s 162 of the Youth Justice Act 1992 – whether the sentencing judge erred in the exercise of the sentencing discretion by failing to consider whether the offences should be referred to the chief executive for a restorative justice process

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the 17 year old applicant was found guilty on his own plea of attempted armed robbery and 14 other offences in the Childrens Court – where the sentencing judge in effect sentenced the applicant to serve 16 months in detention and recorded a conviction for all offences – where the sentencing judge, when considering whether to record a conviction, identified that the applicant had presently poor prospects of rehabilitation but acknowledged that…

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 PBE

Details

AGLC: R v Pbe [2019] QCA 185
Case: [2019] QCA 185
Decision Date: 13 September 2019

CaseChat Overview and Summary

The case of R v PBE involved a 17-year-old applicant who was found guilty on his own plea of attempted armed robbery and 14 other offences in the Childrens Court. The applicant appealed against the sentence, arguing that the sentencing judge had erred in the exercise of the sentencing discretion. The appeal centred on several key issues, including whether the sentencing judge acted on the wrong principle by ordering convictions to be recorded based on the detention ordered for some of the offences, and whether the judge had failed to consider whether the offences should be referred to the chief executive for a restorative justice process. Additionally, the applicant argued that the sentencing judge had erred by considering the short-term prospects of rehabilitation rather than the general impact of recording convictions on rehabilitation. The applicant also contended that no convictions should have been recorded for any offence.

The court considered whether the sentencing judge had erred in the exercise of the sentencing discretion by considering the ordering of detention as a distinct reason to record convictions, and by failing to consider whether the offences should be referred to the chief executive for a restorative justice process. The court also examined whether it was appropriate for the sentencing judge to focus on the short-term prospects of rehabilitation rather than the overall impact of recording convictions on rehabilitation. The court found that the sentencing judge had indeed erred in the exercise of the sentencing discretion, leading to the conclusion that the applicant should be re-sentenced by the Court of Appeal. Consequently, the court determined that it was not appropriate to record a conviction for any of the offences.

The court granted leave to appeal and allowed the appeal. It set aside the order that a conviction be recorded for the offence of committing a public nuisance, ordering instead that the applicant be reprimanded for that offence. For the other offences, the court set aside the orders that a conviction be recorded in each case. This outcome reflects the court's determination that the sentencing judge's approach was flawed and that the applicant should not have convictions recorded for any of the offences.

Orders

Orders of the court

1. Grant leave to appeal.

2. Allow the appeal.

3. For the offence of committing a public nuisance, set aside the order that a conviction be recorded and order that the applicant be reprimanded for that offence.

4. For the other offences for which an order was made that a conviction be recorded, set aside that order in each case.

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 PBE [2019] QCA 185
PARTIES:	R v PBE (applicant)
FILE NO/S:	CA No 347 of 2018 DC No 33 of 2018 DC No 38 of 2018 DC No 53 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Maroochydore – Date of Sentence: 11 December 2018 (Long SC DCJ)
DELIVERED ON:	13 September 2019
DELIVERED AT:	Brisbane
HEARING DATE:	16 April 2019
JUDGES:	Gotterson and McMurdo JJA and Douglas J
ORDERS:	1. Grant leave to appeal. 2. Allow the appeal. 3. For the offence of committing a public nuisance, set aside the order that a conviction be recorded and order that the applicant be reprimanded for that offence. 4. For the other offences for which an order was made that a conviction be recorded, set aside that order in each case.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the 17 year old applicant was found guilty on his own plea of attempted armed robbery and 14 other offences in the Childrens Court – where the sentencing judge in effect sentenced the applicant to serve 16 months in detention and recorded a conviction for all offences – where the prosecutor mistakenly submitted at sentence that the applicant had had convictions recorded previously – where the sentencing judge ordered that convictions be recorded on the basis that detention was ordered for some of the offences – whether the sentencing judge erred in the exercise of the sentencing discretion by considering the ordering of detention as a distinct reason to record convictions CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – OTHER MATTERS – where the 17 year old applicant was found guilty on his own plea of attempted armed robbery and 14 other offences in the Childrens Court – where the sentencing judge in effect sentenced the applicant to serve 16 months in detention and recorded a conviction for all offences – where the sentencing judge did not consider in their reasons whether the offences should be referred to the chief executive for a restorative justice process under s 162 of the Youth Justice Act 1992 – whether the sentencing judge erred in the exercise of the sentencing discretion by failing to consider whether the offences should be referred to the chief executive for a restorative justice process CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the 17 year old applicant was found guilty on his own plea of attempted armed robbery and 14 other offences in the Childrens Court – where the sentencing judge in effect sentenced the applicant to serve 16 months in detention and recorded a conviction for all offences – where the sentencing judge, when considering whether to record a conviction, identified that the applicant had presently poor prospects of rehabilitation but acknowledged that…