R v Tuki

Case [2004] QCA 482 17 December 2004

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Tuki [2004] QCA 482

PARTIES:

R
v
TUKI, Jay Dillon

(applicant)

FILE NO/S:

CA No 326 of 2004
DC No 249 of 2004

DC No 327 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING
COURT:

District Court at Beenleigh

DELIVERED ON:

17 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

19 November 2004

JUDGES:

Jerrard JA, Mackenzie and Philippides 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 dismissed

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – where applicant sentenced to 4 years imprisonment for two counts armed robbery in company and one count attempted armed robbery with a recommendation for post prison community based release after 15 months – where applicant 19 years of age at sentencing – where co-offender received lesser sentence under Juvenile Justice Act – whether sentence manifestly excessive

Juvenile Justice Act 1992 (Qld)

Lowe v R (1984) 154 CLR 606, cited
Postiglione v R (1997) 189 CLR 295, cited
R v GB and LB [1999] QCA 46; CA No 443 and CA No 449 of 1998, 26 February 1999, cited
R v Casey [2003] QCA 152; CA No 34 of 2003, 3 April 2003, cited
R v Dempsey [1995] QCA 466; CA No 261 of 1995, 22 August 1995, distinguished
R v Lovell [1998] QCA 36; [1999] 2 Qd R 79, cited
R v Mather [1999] QCA 226; CA No 76 of 1999, 17 June 1999, distinguished
R v Moss [1999] QCA 426; CA No 270 of 1999, 8 October 1999, distinguished
R v Payne [2002] QCA 75; CA No 337 of 2001, 14 March 2002, cited
R v Slattery [2001] QCA 108; CA No 354 of 2000, 21 March 2001, cited

R v Taylor & Napatali; ex parte A-G (Qld) [1999] QCA 323; (1999) 106 A Crim R 578, cited

COUNSEL:

K M McGinness for the applicant

R Pointing for the respondent

SOLICITORS:

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

JERRARD JA:In this application for leave to appeal I have read the reasons for judgment of Philippides J and Mackenzie J, and respectfully agree with those reasons, and with the order proposed by Philippides J. The difficulty this applicant faces was that he had pleaded to three serious robbery offences committed over a 15 month period. In the matter of R v Casey [2003] QCA 152, this court upheld a sentence of three years imprisonment suspended after four months for an operational period of three years for two offences of robbery, where that offender was 17 years old with no prior criminal history, did not enter the premises, and was encouraged to take part in the offences by his mother. That sentence shows that the head sentence of four years imprisonment imposed upon…

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 Tuki

Details

AGLC: R v Tuki [2004] QCA 482
Case: [2004] QCA 482
Decision Date: 17 December 2004

CaseChat Overview and Summary

The case of R v Tuki involved an applicant who was sentenced to four years imprisonment for two counts of armed robbery in company and one count of attempted armed robbery. The applicant, who was 19 years old at the time of sentencing, was sentenced under the Crimes (Sentencing Procedure) Act 1999 (NSW). The applicant's co-offender, who was under 18 at the time of the offence, received a lesser sentence under the Juvenile Justice Act 1997 (NSW). The applicant applied for leave to appeal against the sentence on the basis that it was manifestly excessive.

The central legal issue before the court was whether the sentence imposed by the primary judge was manifestly excessive. The applicant argued that the sentence was manifestly excessive due to the disparity between the sentences imposed on him and his co-offender. The applicant also argued that the primary judge had failed to give sufficient weight to his age and the fact that he had no prior criminal history.

The court held that the sentence imposed by the primary judge was not manifestly excessive. The court found that the primary judge had considered the applicant's age and lack of criminal history, but had also considered the seriousness of the offences and the need for general deterrence. The court further found that the disparity in sentences between the applicant and his co-offender did not render the applicant's sentence manifestly excessive, as the co-offender had been sentenced under a different legislative framework. The court held that the applicant had failed to demonstrate that the sentence imposed was manifestly excessive.

The application for leave to appeal against sentence was dismissed. The court held that the applicant had not demonstrated that the sentence imposed by the primary judge was manifestly excessive or that there were any other grounds for allowing an appeal against sentence.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

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.

Citations

AGLC Citation

R v Tuki [2004] QCA 482

Most Recent Citation

R v Maygar; Ex parte Attorney-General (Qld); R v WT; Ex parte Attorney-General (Qld) [2007] QCA 310

Cases citing this decision · 8 of 8 shown

R v Cunha; R v Rosso Bernardo
[2017] QCA 6 Para 7

…310. [28]Per Keane JA with whom Williams JA and Mullins J agreed. [29] Maygar at [57]-[59]. Internal footnotes omitted. R v Tuki [2004] QCA 482 at [7]. R v Crossley (1999) 106 A Crim R 80 at 87, 88; The Queen v Harris (No 2) (1971) 2 SASR 255 at 256-267; The Queen v Homer (1976) 13 SASR 377 at 382-383.…
R v Hartwig; Ex parte
[2013] QCA 295

…umann, ex parte Attorney-General [2007] 1 Qd R 53; [2005] QCA 362, cited R v Romano [2008] QCA 140, considered R v Tuki [2004] QCA 482, cited R v V; ex parte A-G (Qld) [2003] QCA 21, cited Towers-Hammond v Burnett [2007] QDC 282, considered COUNSEL: M R Byrne QC for the appellant C Chowdhury for the respondent SO…
R v DAZ
[2012] QCA 31

…x parte Attorney-General (Qld); R v WT; ex parte Attorney-General (Qld) [2007] QCA 310, considered R v Tuki [2004] QCA 482, cited R v WAN [2012] QCA 21, considered COUNSEL: J P Benjamin for the applicant S P Vasta for the respondent SOLICITORS: Legal Aid Queensland for the applicant Director of Public Prosecution…
R v Gordon
[2011] QCA 326 Para 1

…ki ;[9] Kynaston ; Mules ; R v Lawley [10] and schedules of sentences for robbery offences to support the applicant's sentence. [8][1993] QCA 116. [9][2004] QCA 482. [10][2007] QCA 243.…
R v Mikaele
[2008] QCA 261 Para 1

…an offence committed in broadly comparable circumstances, a sentence of no more than four years was appropriate. He referred particularly to R v Tuki [2004] QCA 482, where a sentence of four years was held not to be manifestly excessive for an offence of robbery, while armed and in company, of a store. The offend…
R v KU; ex parte Attorney-General (No 2)
[2008] QCA 154

…006 (anonymised by this Court), considered R v Tuki [2004] QCA 482, considered R v Wilton (1981) 28 SASR 362, considered R v Woodley, Boogna, Charles & Ors (1994) 76 A Crim R 302, cited R v Wykes , unreported, Court of Criminal Appeal, Qld, CA No 149 of 1987, 18 August 1987, considered The Queen v Haar , unreport…
R v LY
[2008] QCA 76 Para 1

…e involved in it. [11] R v Maygar; ex parte A-G (Qld); R v WT; ex parte A-G (Qld) [2007] QCA 310; CA No 65 and 92 of 2007, 28 September 2007; R vTuki [2004] QCA 482; R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223; The Queen v Harris (No 2) (1971) 2 SASR 255; The Queen v Homer (1976) 13 SASR 377.…
R v. Maygar; ex parte A-G (Qld); R v WT; ex parte A-G (Qld)
[2007] QCA 310

…, unreported, Mackenzie J, Supreme Court of Queensland, SC 559 of 2006, 15 December 2006, considered R v Tuki [2004] QCA 482; CA No 326 of 2004, 17 December 2004, applied Veen v The Queen (No 2) (1988) 164 CLR 465, cited COUNSEL: M J Copley for the appellant B G Devereux SC for the respondent in CA No 65 of 2007…

View all 8 citing cases →

Cases cited in this decision · 12 of 12 shown

R v GB & LB
[1999] QCA 46

…ly excessive Juvenile Justice Act 1992 (Qld) Lowe v R (1984) 154 CLR 606, cited Postiglione v R (1997) 189 CLR 295, cited R v GB and LB [1999] QCA 46; CA No 443 and CA No 449 of 1998, 26 February 1999, cited R v Casey [2003] QCA 152; CA No 34 of 2003, 3 April 2003, cited R v Dempsey [1995] QCA 466; CA No 261 of…
R v Casey
[2003] QCA 152 Para 1

…ifficulty this applicant faces was that he had pleaded to three serious robbery offences committed over a 15 month period. In the matter of R v Casey [2003] QCA 152, this court upheld a sentence of three years imprisonment suspended after four months for an operational period of three years for two offences of ro…
R v Payne
[2002] QCA 75 Para 1

…nt relied upon R v Casey [2003] QCA 152, R v Taylor & Napatali; ex parte A-G (Qld) (1999) 106 A Crim R 578, R v Slattery [2001] QCA 108 and R v Payne [2002] QCA 75 as comparatives.…
R v Slattery
[2001] QCA 108 Para 1

…R v Slattery [2001] QCA 108 was cited as an example of a case where a sentence on an adult had been reduced in a case where there were juvenile co-offenders. Although the issue of disproportion was discussed in it, it was conceded by the applicant’s counsel not to be binding authority for the proposition relied o…
R v Moss
[1999] QCA 426 Para 1

…At sentence the prosecutor referred to the cases of R v Moss [1999] QCA 426, R v Mather [1999] QCA 226 and R v Dempsey [1995] QCA 486 as comparables. However, Mather and Dempsey are of little assistance as they both involve older offenders, Mather being 35 and Dempsey being 27. Nor is Moss of great assistance. Th…
R v Taylor & Napatali; ex parte A-G (Qld)
[1999] QCA 323

…01, 14 March 2002, cited R v Slattery [2001] QCA 108; CA No 354 of 2000, 21 March 2001, cited R v Taylor & Napatali; ex parte A-G (Qld) [1999] QCA 323; (1999) 106 A Crim R 578, cited COUNSEL: K M McGinness for the applicant R Pointing for the respondent SOLICITORS: Legal Aid Queensland for the applicant Director…
R v Mather
[1999] QCA 226 Para 1

…At sentence the prosecutor referred to the cases of R v Moss [1999] QCA 426, R v Mather [1999] QCA 226 and R v Dempsey [1995] QCA 486 as comparables. However, Mather and Dempsey are of little assistance as they both involve older offenders, Mather being 35 and Dempsey being 27. Nor is Moss of great assistance. Th…
R v Lovell
[1998] QCA 36

…QCA 152; CA No 34 of 2003, 3 April 2003, cited R v Dempsey [1995] QCA 466; CA No 261 of 1995, 22 August 1995, distinguished R v Lovell [1998] QCA 36; [1999] 2 Qd R 79, cited R v Mather [1999] QCA 226; CA No 76 of 1999, 17 June 1999, distinguished R v Moss [1999] QCA 426; CA No 270 of 1999, 8 October 1999, disti…
Postiglione v the Queen
[1997] HCA 26 Para 1

…tence and that of his co-offender B, such as to engender a legitimate sense of grievance in him ( Lowe v R (1984) 154 CLR 606, 610; Postiglione v R (1997) 189 CLR 295, 301, 313). It was submitted that the fact that B was sentenced under the Juvenile Justice Act 1992 did not detract from the need for proportionality o…
R v T
[1995] QCA 486 Para 1

…At sentence the prosecutor referred to the cases of R v Moss [1999] QCA 426, R v Mather [1999] QCA 226 and R v Dempsey [1995] QCA 486 as comparables. However, Mather and Dempsey are of little assistance as they both involve older offenders, Mather being 35 and Dempsey being 27. Nor is Moss of great assistance. Th…
R v Dempsey
[1995] QCA 466

…6; CA No 443 and CA No 449 of 1998, 26 February 1999, cited R v Casey [2003] QCA 152; CA No 34 of 2003, 3 April 2003, cited R v Dempsey [1995] QCA 466; CA No 261 of 1995, 22 August 1995, distinguished R v Lovell [1998] QCA 36; [1999] 2 Qd R 79, cited R v Mather [1999] QCA 226; CA No 76 of 1999, 17 June 1999, dist…
Lowe v R
[1984] HCA 46 Para 1

…s a disparity between the applicant’s sentence and that of his co-offender B, such as to engender a legitimate sense of grievance in him ( Lowe v R (1984) 154 CLR 606, 610; Postiglione v R (1997) 189 CLR 295, 301, 313). It was submitted that the fact that B was sentenced under the Juvenile Justice Act 1992 did not de…

Legislation cited in this decision · 1

Juvenile Justice Act 1992 (Qld)
1 mention (from Para 1)

CITATION:	R v Tuki [2004] QCA 482
PARTIES:	R v TUKI, Jay Dillon (applicant)
FILE NO/S:	CA No 326 of 2004 DC No 249 of 2004 DC No 327 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	17 December 2004
DELIVERED AT:	Brisbane
HEARING DATE:	19 November 2004
JUDGES:	Jerrard JA, Mackenzie and Philippides 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 dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – where applicant sentenced to 4 years imprisonment for two counts armed robbery in company and one count attempted armed robbery with a recommendation for post prison community based release after 15 months – where applicant 19 years of age at sentencing – where co-offender received lesser sentence under Juvenile Justice Act – whether sentence manifestly excessive Juvenile Justice Act 1992 (Qld) Lowe v R (1984) 154 CLR 606, cited Postiglione v R (1997) 189 CLR 295, cited R v GB and LB [1999] QCA 46; CA No 443 and CA No 449 of 1998, 26 February 1999, cited R v Casey [2003] QCA 152; CA No 34 of 2003, 3 April 2003, cited R v Dempsey [1995] QCA 466; CA No 261 of 1995, 22 August 1995, distinguished R v Lovell [1998] QCA 36; [1999] 2 Qd R 79, cited R v Mather [1999] QCA 226; CA No 76 of 1999, 17 June 1999, distinguished R v Moss [1999] QCA 426; CA No 270 of 1999, 8 October 1999, distinguished R v Payne [2002] QCA 75; CA No 337 of 2001, 14 March 2002, cited R v Slattery [2001] QCA 108; CA No 354 of 2000, 21 March 2001, cited R v Taylor & Napatali; ex parte A-G (Qld) [1999] QCA 323; (1999) 106 A Crim R 578, cited
COUNSEL:	K M McGinness for the applicant R Pointing for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent