R v PZ; ex parte Attorney-General - [2005] QCA 459

SUPREME COURT OF QUEENSLAND

CITATION:

R v PZ; ex parte A-G (Qld) [2005] QCA 459

PARTIES:

R
v
PZ
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 281 of 2005
DC No 128 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

9 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2005

JUDGES:

McMurdo P, Keane JA and Chesterman J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal against sentence by the Attorney-General is allowed
2. The sentence imposed below is set aside and, in lieu thereof, the respondent is to serve three years detention on each count of rape with such sentences to be served concurrently
3. The respondent is to be released from detention after serving 50 percent of that term

4. A warrant is to issue for the arrest of the respondent but lie in the Registry for seven days before it is taken out

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 the respondent, a juvenile, was convicted on his own plea of guilty of two counts of rape, one count of indecent assault, one count of assault occasioning bodily harm whilst armed, three counts of common assault, one count of deprivation of liberty and one count of threatening injury with intent to compel a person to smoke a dangerous drug - where all these offences had been committed on the same occasion against a 16 year old female - where the respondent was sentenced under the Juvenile Justice Act 1992 (Qld) - where the respondent had no previous criminal record and had a tragic family background - where the respondent was sentenced to three months detention suspended forthwith and he was placed under the supervision of the Department of Communities for a period of three years - whether the sentence imposed on the respondent was manifestly inadequate - whether the nature of the respondent's offending meant that a sentence of actual detention should be imposed

Juvenile Justice Act 1992 (Qld), s 193, s 227

R v C [1996] QCA 014; CA No 436 of 1995, 13 February 1996, cited

R v E; ex parte Attorney-General of Queensland [2002] QCA 417; (2002) 134 A Crim R 486, applied

R v JAJ [2003] QCA 554; CA No 321 of 2003, 12 December 2003, considered

R v MAC [2004] QCA 317; CA No 118 of 2004, 3 September 2004, cited

R v Osenkowski (1982) 30 SASR 212, distinguished

R v S [2003] QCA 107; CA No 445 of 2002, 13 March 2003, cited

COUNSEL:

S G Bain for the appellant
A W Moynihan for the respondent

SOLICITORS:

Director of Public Prosecutions…

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: [2005] QCA 459
Decision Date: 9 December 2005

CaseChat Overview and Summary

The case of R v PZ; ex parte Attorney-General involved a respondent who had been convicted of multiple serious offences against a 16-year-old female, including two counts of rape, one count of indecent assault, one count of assault occasioning bodily harm whilst armed, three counts of common assault, one count of deprivation of liberty, and one count of threatening injury with intent to compel a person to smoke a dangerous drug. The respondent, who had no previous criminal record and a tragic family background, was sentenced under the Juvenile Justice Act 1992 (Qld) to three months detention suspended forthwith, and placed under the supervision of the Department of Communities for a period of three years. The Attorney-General appealed against the sentence, arguing it was manifestly inadequate and that the nature of the respondent's offending warranted a sentence of actual detention.

The legal issues before the court were whether the sentence imposed was manifestly inadequate and whether the severity of the respondent's offences warranted a sentence of actual detention. The court had to consider the principles of sentencing juvenile offenders under the Juvenile Justice Act 1992 (Qld), and balance the objectives of rehabilitation and deterrence in light of the respondent's background and the gravity of the offences committed. The court referred to previous cases such as R v E; ex parte Attorney-General of Queensland, R v MAC, and R v C to guide its reasoning. The court distinguished R v Osenkowski, focusing instead on the need to address the seriousness of the crimes and the protection of the community.

The court determined that the sentence imposed was manifestly inadequate given the severity of the respondent's crimes and the need to adequately protect the community. The court considered the cumulative effect of the respondent's offences, which were not only numerous but also involved significant violence and threats against a vulnerable victim. The court emphasised the importance of deterrence and the need for the sentence to reflect the gravity of the respondent's actions. The appeal against the sentence was allowed, and the court set aside the original sentence, ordering the respondent to serve three years detention on each count of rape, to be served concurrently, with release after serving 50 percent of that term. A warrant for the respondent's arrest was issued but remained in the Registry for seven days before being taken out.

Orders

Orders of the court

1. Appeal against sentence by the Attorney-General is allowed

2. The sentence imposed below is set aside and, in lieu thereof, the respondent is to serve three years detention on each count of rape with such sentences to be served concurrently

3. The respondent is to be released from detention after serving 50 percent of that term

4. A warrant is to issue for the arrest of the respondent but lie in the Registry for seven days before it is taken out

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 PZ; ex parte A-G (Qld) [2005] QCA 459
PARTIES:	R v PZ (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 281 of 2005 DC No 128 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	9 December 2005
DELIVERED AT:	Brisbane
HEARING DATE:	23 November 2005
JUDGES:	McMurdo P, Keane JA and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against sentence by the Attorney-General is allowed 2. The sentence imposed below is set aside and, in lieu thereof, the respondent is to serve three years detention on each count of rape with such sentences to be served concurrently 3. The respondent is to be released from detention after serving 50 percent of that term 4. A warrant is to issue for the arrest of the respondent but lie in the Registry for seven days before it is taken out
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 the respondent, a juvenile, was convicted on his own plea of guilty of two counts of rape, one count of indecent assault, one count of assault occasioning bodily harm whilst armed, three counts of common assault, one count of deprivation of liberty and one count of threatening injury with intent to compel a person to smoke a dangerous drug - where all these offences had been committed on the same occasion against a 16 year old female - where the respondent was sentenced under the Juvenile Justice Act 1992 (Qld) - where the respondent had no previous criminal record and had a tragic family background - where the respondent was sentenced to three months detention suspended forthwith and he was placed under the supervision of the Department of Communities for a period of three years - whether the sentence imposed on the respondent was manifestly inadequate - whether the nature of the respondent's offending meant that a sentence of actual detention should be imposed Juvenile Justice Act 1992 (Qld), s 193, s 227 R v C [1996] QCA 014; CA No 436 of 1995, 13 February 1996, cited R v E; ex parte Attorney-General of Queensland [2002] QCA 417; (2002) 134 A Crim R 486, applied R v JAJ [2003] QCA 554; CA No 321 of 2003, 12 December 2003, considered R v MAC [2004] QCA 317; CA No 118 of 2004, 3 September 2004, cited R v Osenkowski (1982) 30 SASR 212, distinguished R v S [2003] QCA 107; CA No 445 of 2002, 13 March 2003, cited
COUNSEL:	S G Bain for the appellant A W Moynihan for the respondent
SOLICITORS:	Director of Public Prosecutions…