R v SBY - [2013] QCA 50

SUPREME COURT OF QUEENSLAND

CITATION:

R v SBY [2013] QCA 50

PARTIES:

R
v
SBY
(applicant)

FILE NO/S:

CA No 181 of 2012
DC No 3 of 2011
DC No 3 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Mackay

DELIVERED ON:

19 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

27 November 2012

JUDGES:

Chief Justice and Muir and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Application for leave to appeal against sentence granted.1.

Allow the appeal.2.

(i) Instead of the sentences imposed below on counts 3, 4, 5, 8, 10, 11 and 12, impose sentences of two years and nine months detention on each count to be served concurrently. 3.

(ii) The appellant be released from custody after serving 50 per cent of the detention order.

The orders made in the District Court are otherwise affirmed.4.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to seven counts of rape of a child under 12 years – where the applicant was a juvenile – where the complainant was the applicant’s younger half-sister – where the applicant admitted police of four of seven counts of rape – where s 150 of the Youth Justice Act 1992 (Qld) requires a custodial sentence be for the shortest appropriate period – where primary judge imposed sentences of three years detention to be served concurrently – where primary judge had not applied the AB v The Queen principle – whether sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the Youth Justice Act 1992 (Qld) provides that a conviction may only be recorded against juveniles in accordance with s 176, s 183 and s 184 – where primary judge ordered that convictions be recorded for seven counts of rape – whether the primary judge erred in ordering a conviction be recorded

Commission for Children and Young People and Child Guardian Act 2000 (Qld)
Criminal Code 1899 (Qld), s 349
Penalties and Sentences Act 1992 (Qld), s 12
Youth Justice Act 1992 (Qld), s 3, s 150(2)(e), s 176, s 176(3), s 176(3)(a), s 182, s 183, s 183(3), s 184, s 184(1), s 184(2), s 184(3), s 227, s 228, Sch 1, Sch 1(1), Sch 1(8), Sch 1(17)

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, considered
R v Briese; Ex Parte Attorney-General [1998] 1 Qd R 487; [1997] QCA 10, considered
R v DAU; ex parte A-G (Qld)[2009] QCA 244, considered
R v Gallagher; ex parte Attorney-General [1999] 1 Qd R 200; [1997] QCA 467, considered
R v IC [2012] QSC 148, distinguished
R v JAJ[2003] QCA 554, considered
R v JO[2008]…

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 SBY

Details

AGLC: R v SBY [2013] QCA 50
Case: [2013] QCA 50
Decision Date: 19 March 2013

CaseChat Overview and Summary

In the case of R v SBY, the appellant was convicted of seven counts of raping a child under the age of 12, who was also his younger half-sister. SBY pleaded guilty to four of the counts, and the remaining three were found guilty by the court. The Queensland Youth Justice Act 1992 mandated that the sentences be for the shortest appropriate period, as per section 150, and required that convictions be recorded in accordance with sections 176, 183, and 184. The primary judge imposed sentences of three years detention to be served concurrently and ordered convictions be recorded for all seven counts of rape. SBY appealed against the sentence and conviction, arguing that the sentence was manifestly excessive and that the primary judge erred in ordering a conviction be recorded.

The court was tasked with determining whether the sentence imposed was manifestly excessive or inadequate and whether the primary judge erred in ordering a conviction be recorded for all seven counts of rape. The appeal hinged on the application of section 150 of the Youth Justice Act 1992, which requires a custodial sentence to be for the shortest appropriate period, and the proper recording of convictions under sections 176, 183, and 184 of the same Act. The court also needed to consider whether the primary judge had applied the AB v The Queen principle correctly.

The court found that the primary judge had not applied the AB v The Queen principle, which requires that a sentence be manifestly excessive or inadequate for the Court of Appeal to interfere. The court also determined that the primary judge erred in ordering a conviction be recorded for all seven counts of rape. The court considered the principles of sentencing for juveniles and the need for a sentence to be proportionate to the offence committed. After considering these factors, the court found that the sentence imposed was manifestly excessive and that the primary judge had erred in ordering a conviction be recorded for all seven counts of rape.

The court allowed the appeal and substituted the sentences imposed by the primary judge with sentences of two years and nine months detention on each count to be served concurrently. The appellant was to be released from custody after serving 50 per cent of the detention order. The court affirmed the orders made in the District Court in all other respects.

Orders

Orders of the court

Application for leave to appeal against sentence granted.1.

Allow the appeal.2.

(i) Instead of the sentences imposed below on counts 3, 4, 5, 8, 10, 11 and 12, impose sentences of two years and nine months detention on each count to be served concurrently. 3.

(ii) The appellant be released from custody after serving 50 per cent of the detention order.

The orders made in the District Court are otherwise affirmed.4.

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 SBY [2013] QCA 50
PARTIES:	R v SBY (applicant)
FILE NO/S:	CA No 181 of 2012 DC No 3 of 2011 DC No 3 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Mackay
DELIVERED ON:	19 March 2013
DELIVERED AT:	Brisbane
HEARING DATE:	27 November 2012
JUDGES:	Chief Justice and Muir and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Application for leave to appeal against sentence granted.1. Allow the appeal.2. (i) Instead of the sentences imposed below on counts 3, 4, 5, 8, 10, 11 and 12, impose sentences of two years and nine months detention on each count to be served concurrently. 3. (ii) The appellant be released from custody after serving 50 per cent of the detention order. The orders made in the District Court are otherwise affirmed.4.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to seven counts of rape of a child under 12 years – where the applicant was a juvenile – where the complainant was the applicant’s younger half-sister – where the applicant admitted police of four of seven counts of rape – where s 150 of the Youth Justice Act 1992 (Qld) requires a custodial sentence be for the shortest appropriate period – where primary judge imposed sentences of three years detention to be served concurrently – where primary judge had not applied the AB v The Queen principle – whether sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the Youth Justice Act 1992 (Qld) provides that a conviction may only be recorded against juveniles in accordance with s 176, s 183 and s 184 – where primary judge ordered that convictions be recorded for seven counts of rape – whether the primary judge erred in ordering a conviction be recorded Commission for Children and Young People and Child Guardian Act 2000 (Qld) Criminal Code 1899 (Qld), s 349 Penalties and Sentences Act 1992 (Qld), s 12 Youth Justice Act 1992 (Qld), s 3, s 150(2)(e), s 176, s 176(3), s 176(3)(a), s 182, s 183, s 183(3), s 184, s 184(1), s 184(2), s 184(3), s 227, s 228, Sch 1, Sch 1(1), Sch 1(8), Sch 1(17) AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, considered R v Briese; Ex Parte Attorney-General [1998] 1 Qd R 487; [1997] QCA 10, considered R v DAU; ex parte A-G (Qld)[2009] QCA 244, considered R v Gallagher; ex parte Attorney-General [1999] 1 Qd R 200; [1997] QCA 467, considered R v IC [2012] QSC 148, distinguished R v JAJ[2003] QCA 554, considered R v JO[2008]…