R v Tanerau - [2013] QCA 33

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tanerau [2013] QCA 33

PARTIES:

R
v
TANERAU, Tahu Ricky
(applicant)

FILE NO/S:

CA No 236 of 2012
DC No 328 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

8 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

25 February 2013

JUDGE:

Muir JA and Atkinson and Martin JJ
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 – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to numerous property and summary offences including receiving stolen property and burglary and stealing – where applicant sentenced to five years imprisonment – where 348 days declared time already served – where a parole eligibility date set after 20 months of custody – where applicant has a lengthy criminal history – where sentencing judge took into account the applicant’s personal circumstances, including the applicant’s drug addiction, family and community support and capability to engage in useful activity – where there was systematic offending over a significant period of time – whether sentence was manifestly excessive

R v Haddad[2001] QCA 171, considered
R v Herricane[1997] QCA 426, considered
R v Suey[2009] QCA 261, considered
R v Williams [2001] 2 Qd R 442; [2000] QCA 409, considered

COUNSEL:

M J Byrne QC, with G T Hansen, for the applicant
S P Vasta for the respondent

SOLICITORS:

Lee Turnbull & Co for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: I agree that the application for leave to appeal should be refused for the reasons given by Martin J.

ATKINSON J: I agree with the reasons of Martin J and the order he proposes.

MARTIN J: The applicant pleaded guilty in the District Court to:

(a)     one count of receiving stolen property,
(b)     one count of burglary and stealing,
(c)     one count of stealing, and
(d)     a number of summary offences.

On each of the charges of receiving stolen property and burglary and stealing he was sentenced to imprisonment for five years. On the stealing charge he was sentenced to imprisonment for three months. Pre-sentence custody of 348 days was deemed to have been time already served under those sentences. A parole eligibility date was set at 30 April 2013 which means that he would be in custody for about 20 months before being eligible to apply for parole.

The applicant seeks leave to appeal against those sentences, more particularly the sentences of five years imprisonment with a parole eligibility date after 20 months, on the ground that they are manifestly excessive. Counsel for the applicant contended that the appropriate sentence is one of four years with a parole eligibility date after 15 months, that is, 30 December 2012.

The offences

All…

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 Tanerau

Details

AGLC: R v Tanerau [2013] QCA 33
Case: [2013] QCA 33
Decision Date: 8 March 2013

CaseChat Overview and Summary

In the case of R v Tanerau, the applicant, who had pleaded guilty to multiple property and summary offences, including receiving stolen property and burglary and stealing, appealed against his sentence. The sentencing judge imposed a five-year imprisonment term, with 348 days declared as time already served. A parole eligibility date was set after 20 months of custody, and the judge took into account the applicant’s personal circumstances, such as his drug addiction, family and community support, and his capability to engage in useful activity. However, the applicant argued that the sentence was manifestly excessive.

The legal issues before the court were whether the sentence imposed by the primary judge was manifestly excessive or inadequate. The court had to consider the applicant's criminal history, the personal circumstances presented, and the systematic nature of the offending. The applicant's extensive criminal history, coupled with the nature of the offences, raised questions about the adequacy of the sentence. Additionally, the applicant's personal circumstances, including his drug addiction and the support available to him, were considered by the sentencing judge. The court's task was to determine whether, in all the circumstances, the sentence was manifestly excessive.

The court held that while the applicant’s personal circumstances were indeed significant, they did not justify a departure from the general principle that a sentence imposed within the range of appropriate penalties should not be interfered with on appeal. The court found that the sentencing judge had appropriately balanced the applicant's personal circumstances with the seriousness of the offending, and the sentence was within the range of appropriate penalties for the crimes committed. Therefore, the court refused the application for leave to appeal against the sentence.

The final orders of the court were to refuse the applicant's application for leave to appeal against the sentence. The court confirmed that the sentence was not manifestly excessive and was appropriate given the nature of the offences and the applicant's criminal history.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

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 Tanerau [2013] QCA 33
PARTIES:	R v TANERAU, Tahu Ricky (applicant)
FILE NO/S:	CA No 236 of 2012 DC No 328 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	8 March 2013
DELIVERED AT:	Brisbane
HEARING DATE:	25 February 2013
JUDGE:	Muir JA and Atkinson and Martin JJ 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 – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to numerous property and summary offences including receiving stolen property and burglary and stealing – where applicant sentenced to five years imprisonment – where 348 days declared time already served – where a parole eligibility date set after 20 months of custody – where applicant has a lengthy criminal history – where sentencing judge took into account the applicant’s personal circumstances, including the applicant’s drug addiction, family and community support and capability to engage in useful activity – where there was systematic offending over a significant period of time – whether sentence was manifestly excessive R v Haddad[2001] QCA 171, considered R v Herricane[1997] QCA 426, considered R v Suey[2009] QCA 261, considered R v Williams [2001] 2 Qd R 442; [2000] QCA 409, considered
COUNSEL:	M J Byrne QC, with G T Hansen, for the applicant S P Vasta for the respondent
SOLICITORS:	Lee Turnbull & Co for the applicant Director of Public Prosecutions (Queensland) for the respondent