R v S - [2003] QCA 107

SUPREME COURT OF QUEENSLAND

CITATION:

R v S [2003] QCA 107

PARTIES:

R
v
S
(applicant)

FILE NO/S:

CA No 445 of 2002
DC No 76 of 2002
DC No 311 of 2002
DC No 326 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED EX TEMPORE ON:

13 March 2003

DELIVERED AT:

Brisbane

HEARING DATE:

13 March 2003

JUDGES:

de Jersey CJ, McMurdo P and White J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:
CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – JUVENILE OFFENDERS - where applicant pleaded guilty to numerous property offences and six counts of rape – where complainant suffers from cerebral palsy - where applicant sentenced to detention for 4 years to be served cumulatively upon a 12 month sentence – where no recommendation for early release from detention – whether sentence manifestly excessive in that the sentences were cumulative and in not ordering release after the applicant had served 50 per cent of the combined sentence

Juvenile Justice Act 1992 (Qld), s 165, s188

R v A; ex parte A-G (Qld) [2001] QCA 542; CA No 275 of 2001, 28 November 2001, applied
R v E; ex parte A-G [2002] QCA 417; CA No 214 and 217 of 2002, 11 October 2002, applied

COUNSEL:

A Moynihan for the applicant
M J Copley for the respondent

SOLICITORS:

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

THE PRESIDENT: On 22 March 2002, the applicant, a juvenile, pleaded guilty in the District Court of Townsville to five counts of burglary and stealing, one count of attempted unlawful use of a motor vehicle, two counts of unlawful use of a motor vehicle with circumstances of aggravation and one count of stealing. The sentence was adjourned and a pre-sentence report ordered.

On 9 August 2002, he pleaded guilty to an ex officio indictment containing one count of entering a dwelling with intent.

On 6 September 2002, he pleaded guilty to six counts of rape contained in a third indictment. A further pre-sentence report was ordered, this time from the Griffith Adolescent Forensic Assessment and Treatment Centre. Submissions as to sentence were made on 12 December 2002 and on 13 December 2002. The applicant was sentenced to 12 months' detention for all the offences on the first and second indictments and a 12 months' detention for breach of probation. These sentences were all concurrent. On the remaining indictment containing the six counts of rape, the applicant was sentenced to detention for four years to be served cumulatively upon the 12 month sentence. Convictions were recorded for all offences. There was no recommendation for early release from detention.

The learned Judge noted that he considered this sentence to be the least period of detention suitable in the circumstances (see s 165 Juvenile Justice Act 1992 (Qld).…

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 S

Details

AGLC: R v S [2003] QCA 107
Case: [2003] QCA 107
Decision Date: 13 March 2003

CaseChat Overview and Summary

In the matter of R v S, the applicant, a juvenile, pleaded guilty to multiple property offences and six counts of rape. The complainant in the rape charges suffered from cerebral palsy. The applicant was sentenced to a detention period of 4 years, which was to be served cumulatively with a 12-month sentence for the property offences. The sentencing judge did not make a recommendation for early release from detention. The applicant sought leave to appeal against the sentence, arguing that it was manifestly excessive because it was cumulative and did not provide for the possibility of release after serving 50 per cent of the combined sentence.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive, given the cumulative nature of the sentences and the absence of a recommendation for early release. The court needed to consider whether the sentence was unjust in light of the principles governing sentencing for juvenile offenders and whether the absence of a recommendation for early release was a material factor in determining the sentence's excessiveness.

The court examined the sentencing principles applicable to juvenile offenders, which include the need for proportionality, deterrence, and rehabilitation. It noted that the sentences were cumulative but found that this was consistent with established sentencing practices for multiple offences. The court also considered the absence of a recommendation for early release but determined that this was not a material factor affecting the overall fairness of the sentence. The court concluded that the sentence, while severe, was not manifestly excessive because it did not deviate from the principles of proportionality and justice applicable to the circumstances of the case.

The application for leave to appeal against the sentence was refused. The court found that the sentence was not manifestly excessive and that the absence of a recommendation for early release did not render the sentence unjust.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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 S [2003] QCA 107
PARTIES:	R v S (applicant)
FILE NO/S:	CA No 445 of 2002 DC No 76 of 2002 DC No 311 of 2002 DC No 326 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED EX TEMPORE ON:	13 March 2003
DELIVERED AT:	Brisbane
HEARING DATE:	13 March 2003
JUDGES:	de Jersey CJ, McMurdo P and White J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – JUVENILE OFFENDERS - where applicant pleaded guilty to numerous property offences and six counts of rape – where complainant suffers from cerebral palsy - where applicant sentenced to detention for 4 years to be served cumulatively upon a 12 month sentence – where no recommendation for early release from detention – whether sentence manifestly excessive in that the sentences were cumulative and in not ordering release after the applicant had served 50 per cent of the combined sentence Juvenile Justice Act 1992 (Qld), s 165, s188 R v A; ex parte A-G (Qld) [2001] QCA 542; CA No 275 of 2001, 28 November 2001, applied R v E; ex parte A-G [2002] QCA 417; CA No 214 and 217 of 2002, 11 October 2002, applied
COUNSEL:	A Moynihan for the applicant M J Copley for the respondent
SOLICITORS:	Legal Aid (Queensland) for the applicant Director of Public Prosecutions (Queensland) for the respondent