R v SCR - [2017] QCA 60

SUPREME COURT OF QUEENSLAND

CITATION:

R v SCR [2017] QCA 60

PARTIES:

R
v
SCR
(applicant)

FILE NO/S:

CA No 238 of 2016
DC No 15 of 2016
DC No 16 of 2016
DC No 22 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Townsville – Date of Sentence: 5 August 2016

DELIVERED ON:

Orders delivered ex tempore 15 March 2017
Reasons delivered 11 April 2017

DELIVERED AT:

Brisbane

HEARING DATE:

15 March 2017

JUDGES:

Fraser and Morrison JJA and Mullins J
Judgment of the Court

ORDERS:

Delivered ex tempore on 15 March 2017:

1.   Application for leave to appeal against sentence is allowed.

2.   Sentence imposed in the Children’s Court on 5 August 2016 is varied by setting aside the order that the applicant is required to serve 70% of the sentence of detention and instead ordering the applicant is to be released from detention on a supervised release order after serving 60% of the period of detention.

3.   Otherwise the other orders of the Children’s Court are confirmed.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the child applicant plead guilty to a substantial number of offences and was sentenced to serve concurrent terms of detention for three years and six months – where s 272(2) Youth Justice Act allows for release after the young offender serves 70 per cent of the detention term – where, in special circumstances that term may be reduced to between 50 and 70 per cent – where the applicant had a prejudicial upbringing and is institutionalised due to a history of petty crime – where the applicant assisted and cooperated with authorities – where the respondent concedes that an error was made by the sentencing judge when the sentencing judge failed to consider those matters as special circumstances – whether the special circumstances should result in an earlier release date – whether the sentence is manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 189
Youth Justice Act 1992 (Qld), s 227(2)

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited
R v J[1995] QCA 516, cited
R v R, unreported, McPherson JA Thomas and Moynihan JJ, CA No 188 of 1995, 25 August 1995, cited

COUNSEL:

P F Richards for the applicant (pro bono)
V A Loury QC for the respondent

SOLICITORS:

No appearance for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: Over a 13 month period between 7 January 2015 and 16 February 2016, Mr SCR committed a substantial number of offences, all of which were the subject of guilty pleas and sentences on 5 August 2016. He was aged between 14 and 15 years at the time of offences, and 16 at the time of sentence.
He was sentenced to various (concurrent)…

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 SCR

Details

AGLC: R v SCR [2017] QCA 60
Case: [2017] QCA 60
Decision Date: 15 March 2017

CaseChat Overview and Summary

In the case of R v SCR, the applicant appealed against the sentence imposed by the Children's Court of Victoria, contending that the sentence was manifestly excessive. The applicant, a young person, had pleaded guilty to a substantial number of offences and was sentenced to concurrent terms of detention for three years and six months. Under section 272(2) of the Youth Justice Act, the applicant was required to serve 70 per cent of the detention term before being eligible for release. However, the applicant argued that special circumstances warranted a reduced term, potentially down to 50 per cent, due to a prejudicial upbringing, institutionalisation, and cooperation with authorities.

The primary legal issue before the court was whether the special circumstances identified by the applicant warranted a reduction in the detention term, and if the sentence was manifestly excessive. The court needed to determine whether the Children's Court had erred in failing to consider the special circumstances as grounds for reducing the detention term. The respondent conceded that an error was made by the sentencing judge in this regard.

The court found that the special circumstances, including the applicant’s upbringing and institutionalisation, should have been considered by the sentencing judge. Consequently, the court allowed the appeal against the sentence. The sentence was varied to set aside the order that the applicant was required to serve 70 per cent of the detention term. Instead, the applicant was ordered to be released from detention on a supervised release order after serving 60 per cent of the detention term. The other orders of the Children's Court were confirmed.

Orders

Orders of the court

Delivered ex tempore on 15 March 2017:

1. Application for leave to appeal against sentence is allowed.

2. Sentence imposed in the Children’s Court on 5 August 2016 is varied by setting aside the order that the applicant is required to serve 70% of the sentence of detention and instead ordering the applicant is to be released from detention on a supervised release order after serving 60% of the period of detention.

3. Otherwise the other orders of the Children’s Court are confirmed.

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 SCR [2017] QCA 60
PARTIES:	R v SCR (applicant)
FILE NO/S:	CA No 238 of 2016 DC No 15 of 2016 DC No 16 of 2016 DC No 22 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Townsville – Date of Sentence: 5 August 2016
DELIVERED ON:	Orders delivered ex tempore 15 March 2017 Reasons delivered 11 April 2017
DELIVERED AT:	Brisbane
HEARING DATE:	15 March 2017
JUDGES:	Fraser and Morrison JJA and Mullins J Judgment of the Court
ORDERS:	Delivered ex tempore on 15 March 2017: 1. Application for leave to appeal against sentence is allowed. 2. Sentence imposed in the Children’s Court on 5 August 2016 is varied by setting aside the order that the applicant is required to serve 70% of the sentence of detention and instead ordering the applicant is to be released from detention on a supervised release order after serving 60% of the period of detention. 3. Otherwise the other orders of the Children’s Court are confirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the child applicant plead guilty to a substantial number of offences and was sentenced to serve concurrent terms of detention for three years and six months – where s 272(2) Youth Justice Act allows for release after the young offender serves 70 per cent of the detention term – where, in special circumstances that term may be reduced to between 50 and 70 per cent – where the applicant had a prejudicial upbringing and is institutionalised due to a history of petty crime – where the applicant assisted and cooperated with authorities – where the respondent concedes that an error was made by the sentencing judge when the sentencing judge failed to consider those matters as special circumstances – whether the special circumstances should result in an earlier release date – whether the sentence is manifestly excessive Penalties and Sentences Act 1992 (Qld), s 189 Youth Justice Act 1992 (Qld), s 227(2) House v The King (1936) 55 CLR 499; [1936] HCA 40, cited AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited R v J[1995] QCA 516, cited R v R, unreported, McPherson JA Thomas and Moynihan JJ, CA No 188 of 1995, 25 August 1995, cited
COUNSEL:	P F Richards for the applicant (pro bono) V A Loury QC for the respondent
SOLICITORS:	No appearance for the applicant Director of Public Prosecutions (Queensland) for the respondent