R v Turner - [2009] QCA 15

SUPREME COURT OF QUEENSLAND

CITATION:

R v Turner [2009] QCA 15

PARTIES:

R
v
TURNER, Kael Haynes Robinson
(applicant/appellant)

FILE NO/S:

CA No 236 of 2008
DC No 226 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

13 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2009

JUDGES:

McMurdo P, Keane JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Application for leave to appeal granted.1.

Appeal allowed to the extent of replacing the period of probation on each count of three years with a period of probation on each count of 18 months.2.

The sentence is otherwise confirmed.3.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant appeals against a sentence of six months imprisonment and three years probation after a plea of guilty to four counts of robbery in company with personal violence – where by the time of appeal the custodial sentence had been served – where applicant was seventeen years of age at the time of offending – where applicant has no prior criminal history – where applicant rehabilitated – where six months imprisonment has been served – whether the maximum period of probation must also be served – whether the sentence imposed was manifestly excessive

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – NON-CUSTODIAL ORDERS – GENERALLY – PARITY BETWEEN CO-OFFENDERS – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant seventeen years old – where one seventeen year old co-offender engaged in a further robbery – where co-offender placed on a wholly non-custodial sentence – whether the applicant’s sentence offended the parity principle – whether the applicant should have received a wholly non-custodial sentence

Penalties and Sentences Act 1992 (Qld), s 9(4)

R v Dullroy & Yates; ex parte A-G (Qld)[2005] QCA 219, referred to
R v Lovell [1999] 2 Qd R 79; [1998] QCA 36, referred to
R v Mules[2007] QCA 47, referred to
R v Taylor & Napatali; ex parte Attorney General of (Qld) (1999) 106 A Crim R 578; [1999] QCA 323, referred to

COUNSEL:

The applicant appeared on his own behalf
D R Kinsella for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MCMURDO P: I agree with Atkinson J.

KEANE JA: I have had the advantage of reading in draft the reasons of Atkinson J I agree with those reasons and the orders proposed by her Honour.

ATKINSON J: The applicant seeks leave to appeal the sentence imposed on him in the District Court. On 1 August 2008 he was sentenced on his own plea of guilty on four counts of robbery in company with personal violence. The sentence imposed on each count was six months imprisonment…

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 Turner

Details

AGLC: R v Turner [2009] QCA 15
Case: [2009] QCA 15
Decision Date: 13 February 2009

CaseChat Overview and Summary

The appeal by Turner against his sentence of six months imprisonment and three years probation for four counts of robbery in company with personal violence has been considered by the court. By the time of the appeal, Turner had already served his custodial sentence. Turner was seventeen at the time of the offending and had no prior criminal history. He had also been rehabilitated since the offence. The key issue before the court was whether Turner must serve the full period of probation, which had not yet been completed at the time of the appeal. Another issue was whether the sentence imposed was manifestly excessive.

The court examined the principle of parity between co-offenders and the appropriateness of the sentence. It noted that Turner's co-offender, who was also seventeen at the time of the offence, had committed a further robbery and was sentenced to a wholly non-custodial sentence. The court considered whether Turner's sentence offended the parity principle and whether he should have received a wholly non-custodial sentence. The court concluded that the sentence imposed was manifestly excessive due to the disparity with the co-offender's sentence and Turner's age and rehabilitation status.

The court granted leave to appeal and allowed the appeal to the extent of replacing the three-year probation period on each count with an 18-month probation period on each count. The court confirmed the rest of the sentence. Turner is to serve the reduced period of probation on each count. The decision highlights the importance of parity in sentencing and the consideration of individual circumstances, such as age and rehabilitation, in determining an appropriate sentence.

Orders

Orders of the court

Application for leave to appeal granted.1.

Appeal allowed to the extent of replacing the period of probation on each count of three years with a period of probation on each count of 18 months.2.

The sentence is otherwise confirmed.3.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Turner [2009] QCA 15
PARTIES:	R v TURNER, Kael Haynes Robinson (applicant/appellant)
FILE NO/S:	CA No 236 of 2008 DC No 226 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	13 February 2009
DELIVERED AT:	Brisbane
HEARING DATE:	3 February 2009
JUDGES:	McMurdo P, Keane JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Application for leave to appeal granted.1. Appeal allowed to the extent of replacing the period of probation on each count of three years with a period of probation on each count of 18 months.2. The sentence is otherwise confirmed.3.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant appeals against a sentence of six months imprisonment and three years probation after a plea of guilty to four counts of robbery in company with personal violence – where by the time of appeal the custodial sentence had been served – where applicant was seventeen years of age at the time of offending – where applicant has no prior criminal history – where applicant rehabilitated – where six months imprisonment has been served – whether the maximum period of probation must also be served – whether the sentence imposed was manifestly excessive CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – NON-CUSTODIAL ORDERS – GENERALLY – PARITY BETWEEN CO-OFFENDERS – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant seventeen years old – where one seventeen year old co-offender engaged in a further robbery – where co-offender placed on a wholly non-custodial sentence – whether the applicant’s sentence offended the parity principle – whether the applicant should have received a wholly non-custodial sentence Penalties and Sentences Act 1992 (Qld), s 9(4) R v Dullroy & Yates; ex parte A-G (Qld)[2005] QCA 219, referred to R v Lovell [1999] 2 Qd R 79; [1998] QCA 36, referred to R v Mules[2007] QCA 47, referred to R v Taylor & Napatali; ex parte Attorney General of (Qld) (1999) 106 A Crim R 578; [1999] QCA 323, referred to
COUNSEL:	The applicant appeared on his own behalf D R Kinsella for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent