R v T - [1994] QCA 326

IN THE COURT OF APPEAL [1994] QCA 326

SUPREME COURT OF QUEENSLAND

C.A. No. 181 of 1994

Brisbane [R v. T]

T H E Q U E E N

v.
T

Applicant

_______________________________________________________________

McPherson J.A.
Pincus J.A.
Ambrose J.

_______________________________________________________________
Judgment delivered 05/09/1994
Separate reasons for judgment of each member of the Court; all
concurring as to the orders to be made.
_______________________________________________________________

1.APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED;

2.APPEAL ALLOWED;

3.THE SENTENCES IMPOSED BY THE PRIMARY JUDGE ARE SET ASIDE;

4.MATTER REMITTED TO THE DISTRICT COURT FOR A RE-SENTENCING OF

THE APPLICANT.

_______________________________________________________________

CATCHWORDS:

CRIMINAL LAW - PRACTICE AND PROCEDURE - pre- sentence report under the Juvenile Justice Act s. 164 - whether must be a written report or merely oral - oral evidence given below considered not to fulfil requirements of s. 164.

CRIMINAL LAW - APPEAL AND NEW TRIAL - whether Court of Appeal can remit a criminal case for re-sentencing to court below, including the District Court - Criminal Code s. 671B, O 70 rr. 11, 12, 25 Supreme Court Rules.

Counsel:	Mr S Hamlyn-Harris for the applicant. Mr P Callaghan for the respondent.
Solicitors:	Legal Aid Office for the applicant. Director of Prosecutions for the respondent.
Date of hearing:	3 August 1994.

REASONS FOR JUDGMENT - MCPHERSON J.A.
Judgment delivered the Fifth day of September 1994

This application for leave to appeal raises the question whether the learned judge of District Courts sentenced the applicant, who is a child, to detention without first obtaining the pre-sentence report contemplated by s.164 of the Juvenile Justice Act 1992, and, if so, what is to be done about it.

I have read what Pincus J.A. has written on the subject of s.164, and I agree with it. Section 164, read with the provisions of ss.110 to 112, envisages a pre-sentence report that is in writing, whereas the report of Mrs Ryder, which consisted of her evidence given at the sentence hearing, was oral. Whether in this or any other case it might be possible to satisfy s.164 by having the witness sign a transcript of her oral evidence does not arise for decision here. Apart from other difficulties, what she said in evidence did not provide all of the information specified in reg.5 of Juvenile Justice Regulations 1993, to which his Honour was not referred.
It follows that the sentence cannot stand. It must be quashed in the exercise either of the appellate power of this Court, or of the power to issue certiorari under the general jurisdiction of the Court or s.28 of the District Courts Act 1967, or by making an order having the like effect pursuant to s.41 of the Judicial Review Act 1991. Once quashed, the problem is to decide what course may then be followed.

We do not have, any more than did the sentencing judge below, the necessary report under s.164. Without making the same mistake again, this Court therefore cannot make a detention order against…

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 T

Details

AGLC: R v T [1994] QCA 326
Case: [1994] QCA 326
Decision Date: 5/09/1994

CaseChat Overview and Summary

In the case of R v T, the defendant appealed against his sentence, arguing that the pre-sentence report upon which the sentencing judge relied was insufficient as it was not in written form. The case was heard in the Court of Appeal, which was required to determine whether the pre-sentence report must be in written form or whether an oral report was sufficient under the provisions of the Juvenile Justice Act. The appeal also raised the issue of whether the Court of Appeal had the power to remit the case to the District Court for re-sentencing.

The court examined the statutory provisions under the Juvenile Justice Act and found that section 164 requires a pre-sentence report to be prepared before sentencing a young person. The court considered the plain language of the statute and held that the report must be in written form, as the use of the word "report" implies a written document. The court found that the oral evidence provided was not a sufficient substitute for a written report, as it did not meet the requirements of the statute. The court also considered the relevant provisions of the Criminal Code and Supreme Court Rules, which set out the procedure for appeals and re-sentencing. The court held that it did have the power to remit the case to the District Court for re-sentencing, as this was a matter within its discretion.

The Court of Appeal allowed the appeal and remitted the case to the District Court for re-sentencing, with the direction that a proper written pre-sentence report be prepared before the re-sentencing hearing. The court held that the failure to prepare a written pre-sentence report was a significant error, which had the potential to affect the sentence imposed on the defendant. The court emphasised the importance of ensuring that all legal requirements are met in criminal cases, particularly when it comes to the sentencing of young people. The final orders of the court were that the appeal be allowed and the case be remitted to the District Court for re-sentencing in accordance with the directions given.

Orders