R v. Talakai - [2008] QCA 315

SUPREME COURT OF QUEENSLAND

CITATION:

R v Talakai [2008] QCA 315

PARTIES:

R
v
TALAKAI, Nathan James
(applicant)

FILE NO/S:

CA No 147 of 2008
DC No 472 of 2008
DC No 1378 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

10 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

16 September 2008

JUDGES:

McMurdo P, Cullinane and Atkinson JJ
Separate reasons for judgment of each member of the Court, Cullinane and Atkinson JJ concurring as to the orders made, McMurdo P dissenting

ORDER:

Application refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – PROPERTY OFFENCES – applicant pleaded guilty to 19 charges on three indictments and eight summary offences – the most serious offences included burglary, robbery, "car jacking", wilful damage and assault on police – applicant sentenced to eight years imprisonment on five charges and lesser concurrent terms on the other offences – judge set parole eligibility after one third of the effective sentence, on 28 September 2009 – offences committed whilst the applicant was abusing drugs – applicant had completed educational courses and attended Alcoholics Anonymous in custody – applicant had positive references from his teachers and chaplains at Woodford Correctional Centre – applicant's partner and family were supportive – whether sentence was manifestly excessive

Corrective Services Act 2006 (Qld), Ch 5, Pt 1, Div 5

R v Leu; R v Togia[2008] QCA 201, cited

COUNSEL:

M A Green for the applicant
M J Copley for the respondent

SOLICITORS:

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

McMURDO P: The applicant, Nathan James Talakai, pleaded guilty in the District Court at Brisbane on 20 May 2008 to a large number of charges contained in three indictments and to some summary offences. The prosecution entered a nolle prosequi in respect of count 12 on the first indictment which contained 15 counts. The offences in that indictment to which Mr Talakai pleaded guilty occurred between 9 August 2006 and 25 January 2007. They were three counts of burglary and stealing (counts 1, 2 and 5), one count of wilful damage (count 3), two counts of unlawfully using a motor vehicle (counts 4 and 8), one count of entering a dwelling with intent at night (count 6), one count of robbery with personal violence while armed (count 7), one count of entering a dwelling with intent (count 9), one count of entering a dwelling with intent by break (count 10), one count of unlawful entry of a vehicle for committing an indictable offence and threatening to use actual violence (count 11), one count of demanding property with menaces with intent to steal (count 13), one count of entering a dwelling with intent by break at night (counts 14), and one count of robbery with…

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: [2008] QCA 315
Decision Date: 10 October 2008

CaseChat Overview and Summary

The applicant, who had pleaded guilty to 19 charges across three indictments and eight summary offences, including serious offences such as burglary, robbery, car jacking, wilful damage, and assault on police, appealed against his sentence. The offences were committed while the applicant was under the influence of drugs. Following the guilty pleas, the applicant was sentenced to eight years of imprisonment on five charges, with lesser concurrent terms for the other offences. The judge set the parole eligibility date after one third of the effective sentence, which was scheduled for 28 September 2009. The applicant argued that the sentence was manifestly excessive, considering his participation in educational courses, Alcoholics Anonymous meetings, and positive references from teachers and chaplains at Woodford Correctional Centre. His partner and family were also supportive.

The legal issues before the court were whether the sentence imposed was manifestly excessive. The court was required to consider the nature and circumstances of the offences, the character and antecedents of the applicant, and the mitigating factors presented, including the applicant's efforts towards rehabilitation while in custody and the support from his family.

The court reviewed the comprehensive sentencing principles and found that while the applicant had made efforts towards rehabilitation and had support from his family, the gravity and seriousness of the offences warranted a significant custodial sentence. The court held that the sentence was not manifestly excessive, as it was proportionate to the seriousness of the crimes committed. The court also noted the need to consider deterrence and protection of the community. Consequently, the application to reduce the sentence was refused.

The court's final order was that the application to reduce the sentence was refused. The applicant's appeal against the sentence was dismissed, and the original sentence remained in place.

Orders

Orders of the court

Application 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 Talakai [2008] QCA 315
PARTIES:	R v TALAKAI, Nathan James (applicant)
FILE NO/S:	CA No 147 of 2008 DC No 472 of 2008 DC No 1378 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	10 October 2008
DELIVERED AT:	Brisbane
HEARING DATE:	16 September 2008
JUDGES:	McMurdo P, Cullinane and Atkinson JJ Separate reasons for judgment of each member of the Court, Cullinane and Atkinson JJ concurring as to the orders made, McMurdo P dissenting
ORDER:	Application refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – PROPERTY OFFENCES – applicant pleaded guilty to 19 charges on three indictments and eight summary offences – the most serious offences included burglary, robbery, "car jacking", wilful damage and assault on police – applicant sentenced to eight years imprisonment on five charges and lesser concurrent terms on the other offences – judge set parole eligibility after one third of the effective sentence, on 28 September 2009 – offences committed whilst the applicant was abusing drugs – applicant had completed educational courses and attended Alcoholics Anonymous in custody – applicant had positive references from his teachers and chaplains at Woodford Correctional Centre – applicant's partner and family were supportive – whether sentence was manifestly excessive Corrective Services Act 2006 (Qld), Ch 5, Pt 1, Div 5 R v Leu; R v Togia[2008] QCA 201, cited
COUNSEL:	M A Green for the applicant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent