R v TAO - [2020] QCA 4

SUPREME COURT OF QUEENSLAND

CITATION:

R v TAO [2020] QCA 4

PARTIES:

R
v
TAO
(applicant)

FILE NO/S:

CA No 174 of 2019
DC No 58 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Brisbane – Date of Sentence: 10 June 2019 (Allen QC DCJ)

DELIVERED ON:

4 February 2020

DELIVERED AT:

Brisbane

HEARING DATE:

29 November 2019

JUDGES:

Sofronoff P and McMurdo JA and Boddice J

ORDERS:

1.   The application for leave to appeal against sentence be granted.

2.   The appeal be allowed.

3.   The sentences be set aside, to the extent that it be ordered that no convictions be recorded, but not otherwise.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – OTHER MATTERS – where the applicant was convicted of one offence of assault occasioning bodily harm whilst in company and two offences of robbery in company with personal violence – where the applicant was sentenced to detention for 18 months suspended immediately for each count of robbery in company with violence – where the applicant was sentenced to probation for 18 months for the count of assault occasioning bodily harm whilst armed and in company – where convictions were recorded for each count – where the applicant had a relevant juvenile criminal history – where the offences were committed in the company of two others – where the applicant grabbed one complainant by the hair and punched and kicked the complainant – where all three complainants had their mobile telephones taken – where the applicant’s living conditions at the time of sentence had changed from the time of the offending – where the applicant had taken positive steps towards rehabilitation – where the sentencing Judge considered factors set out in the Youth Justice Act 1992 (Qld) in the exercise of the sentencing discretion – where the applicant appeals against the sentences on the ground that the recording of the convictions rendered the sentences manifestly excessive – whether the sentencing discretion miscarried by reason of misapplication of principle

Youth Justice Act 1992 (Qld), s 183, s 184

COUNSEL:

C R Smith for the applicant
J D Finch for the respondent

SOLICITORS:

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

SOFRONOFF P: I agree with Boddice J.
McMURDO JA: I agree with Boddice J.
BODDICE J: TAO makes application for leave to appeal sentences imposed in the Childrens Court of Queensland at Brisbane on 10 June 2019 for one offence of assault occasioning bodily harm whilst in company and two offences of robbery in company with personal violence.
The sole ground of appeal, should leave be granted, is that the recording of convictions rendered the sentences manifestly excessive.
Background
On 7 March 2019, the applicant, then aged 16, entered pleas of guilty to the three offences committed on 15 July 2018. At the time of the offending, the applicant was 15 years of age. The applicant was sentenced, in respect of each…

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 TAO

Details

AGLC: R v TAO [2020] QCA 4
Case: [2020] QCA 4
Decision Date: 4 February 2020

CaseChat Overview and Summary

In the case of R v TAO, the applicant was convicted of one offence of assault occasioning bodily harm whilst in company and two offences of robbery in company with personal violence. The applicant was sentenced to detention for 18 months suspended immediately for each count of robbery in company with violence, and to probation for 18 months for the count of assault occasioning bodily harm whilst armed and in company. The applicant appealed against the sentences on the ground that the recording of the convictions rendered the sentences manifestly excessive.

The legal issues the court had to decide were whether the sentencing discretion miscarried by reason of misapplication of principle, particularly in light of the applicant’s age, prospects of rehabilitation, and changes in her life subsequent to the offending. The applicant argued that the recording of convictions resulted in sentences that were manifestly excessive in all the circumstances. The Crown contended that the recording of convictions represented a proper exercise of the sentencing discretion and that there was no misapplication of principle.

The court determined that the sentencing discretion miscarried by reason of misapplication of principle. The court considered the factors set out in the Youth Justice Act 1992 (Qld) in the exercise of the sentencing discretion. The court found that, notwithstanding the positive changes in the applicant’s life and her prospects of rehabilitation, the nature of the applicant’s previous offending and the nature of the offences rendered detention appropriate in the circumstances. However, the court concluded that the recording of convictions was inappropriate given the applicant’s age, prospects of rehabilitation, and changes in her life subsequent to the offending.

The court granted leave to appeal against sentence, allowed the appeal, and set aside the sentences to the extent that it ordered that no convictions be recorded.

Orders

Orders of the court

1. The application for leave to appeal against sentence be granted.

2. The appeal be allowed.

3. The sentences be set aside, to the extent that it be ordered that no convictions be recorded, but not otherwise.

Background

Background to the litigation

The sole ground of appeal, should leave be granted, is that the recording of convictions rendered the sentences manifestly excessive.Background On 7 March 2019, the applicant, then aged 16, entered pleas of guilty to the three offences committed on 15 July 2018. At the time of the offending, the applicant was 15 years of age. The applicant was sentenced, in respect of each count of robbery in company with violence, to detention for a period of 18 months, suspended immediately with the applicant released on a conditional release order for three months. The applicant was sentenced to probation for a period of 18 months in respect of the count of assault occasioning bodily harm whilst armed and in company. Convictions were recorded in respect of each count.Submissions The applicant submits that, whilst she had a prior and relevant juvenile criminal history, including breaching previous Court orders, the applicant’s age, prospects of rehabilitation and changes in her life subsequent to the offending, meant that the recording of convictions resulted in sentences which were manifestly excessive in all the circumstances. The Crown submits that the recording of convictions represented a proper exercise of the sentencing discretion in all the circumstances. There was no misapplication of principle. The sentencing Judge had regard to all relevant factors.Offences The offences were committed by the applicant whilst in the company of two other females. The three complainants were total strangers to the applicant. They were confronted by the applicant and her co-offenders whilst taking photographs on their mobile phones in a public square. The applicant was an active participant in the offences. Her conduct included grabbing one complainant by her hair and punching and kicking that complainant, including a kick to the head. The other two complainants were assaulted by the applicant’s co-offenders. Each suffered significant blows to the head. Their mobile telephones were also taken, without their consent.Sentencing remarks The sentencing Judge characterised the applicant’s behaviour as vicious, bullying and cowardly. That behaviour was said to be more disgraceful as the applicant had engaged in similar behaviour in the past, for which she had been sentenced to detention with a conditional release order and two years’ probation. The sentencing Judge observed that the offending had occurred in the context of the applicant living for extended periods on the streets and associating with other young and older offenders. That situation was accepted as having changed at the time of sentence. The applicant was now living in a more stable domestic situation. The applicant had taken positive steps towards rehabilitation, with an acknowledgment by the applicant’s mother and the author of the pre-sentencing report that there were signs of developing maturity and changes for the better. The sentencing Judge found that, notwithstanding those positive circumstances, the nature of the applicant’s previous offending and the nature of the offences rendered detention appropriate in the circumstances. However, to facilitate the ongoing rehabilitation, the sentencing Judge determined to make a conditional release order in respect of the periods of detention and an order for probation on the remaining count.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I would re-exercise the sentencing discretion by ordering no convictions be recorded.Conclusion I would order:1.The application for leave to appeal against sentence be granted.2.The appeal be allowed.3.The sentences below be set aside, to the extent that it be ordered that no convictions be recorded, but not otherwise.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v TAO [2020] QCA 4
PARTIES:	R v TAO (applicant)
FILE NO/S:	CA No 174 of 2019 DC No 58 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Brisbane – Date of Sentence: 10 June 2019 (Allen QC DCJ)
DELIVERED ON:	4 February 2020
DELIVERED AT:	Brisbane
HEARING DATE:	29 November 2019
JUDGES:	Sofronoff P and McMurdo JA and Boddice J
ORDERS:	1. The application for leave to appeal against sentence be granted. 2. The appeal be allowed. 3. The sentences be set aside, to the extent that it be ordered that no convictions be recorded, but not otherwise.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – OTHER MATTERS – where the applicant was convicted of one offence of assault occasioning bodily harm whilst in company and two offences of robbery in company with personal violence – where the applicant was sentenced to detention for 18 months suspended immediately for each count of robbery in company with violence – where the applicant was sentenced to probation for 18 months for the count of assault occasioning bodily harm whilst armed and in company – where convictions were recorded for each count – where the applicant had a relevant juvenile criminal history – where the offences were committed in the company of two others – where the applicant grabbed one complainant by the hair and punched and kicked the complainant – where all three complainants had their mobile telephones taken – where the applicant’s living conditions at the time of sentence had changed from the time of the offending – where the applicant had taken positive steps towards rehabilitation – where the sentencing Judge considered factors set out in the Youth Justice Act 1992 (Qld) in the exercise of the sentencing discretion – where the applicant appeals against the sentences on the ground that the recording of the convictions rendered the sentences manifestly excessive – whether the sentencing discretion miscarried by reason of misapplication of principle Youth Justice Act 1992 (Qld), s 183, s 184
COUNSEL:	C R Smith for the applicant J D Finch for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent