R v WAJ

Case [2010] QCA 87 20 April 2010

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SUPREME COURT OF QUEENSLAND

CITATION:

R v WAJ [2010] QCA 87

PARTIES:

R
v
WAJ
(applicant)

FILE NO/S:

CA No 315 of 2009
DC No 3823 of 2009
DC No 3824 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Toowoomba

DELIVERED ON:

20 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

14 April 2010

JUDGES:

Muir and Fraser JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty and was convicted of five indictable offences and one summary offence – where the applicant was 16 years of age when the majority of offences were committed and when sentenced – where the applicant applied for leave to appeal on the grounds that the sentences were manifestly excessive in all the circumstances – whether the sentences imposed were manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL –APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where the applicant applied for leave to appeal on the grounds that the sentences were manifestly excessive when compared to the sentence imposed on a co-accused – whether the sentences were manifestly excessive when compared to the sentence imposed on a co-accused

CRIMINAL LAW – APPEAL AND NEW TRIAL –APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant contended that the sentencing judge erred in recording convictions – whether the sentencing judge erred in recording convictions

Youth Justice Act 1992 (Qld), s 175, s 176, s 183, s 184(1)

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, applied
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, applied
R v B[1995] QCA 231, cited
R v BBN[2008] QCA 84, cited
R v H[2000] QCA 196, cited
R v J[2000] QCA 489, cited
R v KAC[2010] QCA 39, applied
R v S[1999] QCA 499, cited
R v SBP[2009] QCA 408, cited

COUNSEL:

The applicant appeared on his own behalf
M B Lehane for the respondent

SOLICITORS:

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

UIR JA: MI agree that the application should be refused for the reasons given by Fraser JA.

FRASER JA: The applicant was convicted on his pleas of guilty to five indictable offences and one summary offence committed between January and September 2009. He was 15 years of age when he committed the first offence and 16 years of age when he committed the other offences and when he was sentenced on 25 November 2009. The applicant has applied for leave to appeal against his sentence of 12 months detention (for an assault occasioning bodily harm in company committed on…

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 WAJ

Details

AGLC: R v WAJ [2010] QCA 87
Case: [2010] QCA 87
Decision Date: 20 April 2010

CaseChat Overview and Summary

The applicant, who pleaded guilty to five indictable offences and one summary offence, appealed against the sentence imposed by the court. The applicant was 16 years old at the time of sentencing. The appeal focused on the grounds that the sentences were manifestly excessive, particularly when compared to the sentence imposed on a co-accused. Additionally, the applicant argued that the sentencing judge erred in recording the convictions.

The court had to determine whether the sentences imposed on the applicant were manifestly excessive in all the circumstances, and whether they were disproportionately severe when compared to the sentence of the co-accused. Furthermore, the court examined whether the sentencing judge made any errors in recording the convictions.

The court found that the sentences were not manifestly excessive and that there was no parity error between the sentences imposed on the applicant and the co-accused. The court also found no error in the recording of the convictions by the sentencing judge. Consequently, the application for leave to appeal was refused.

The final orders of the court were that the application for leave to appeal was refused.

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.

Citations

AGLC Citation

R v WAJ [2010] QCA 87

Most Recent Citation

R v TX [2011] QCA 68

Cases citing this decision · 11 of 11 shown

R v BZZ & AZY; Ex parte
[2025] QCA 89 Para 15

…upported by the express words of s 183(1). [56] R v TX [2011] QCA 68 at [33] citing R v B [1995] QCA 231; R v SBP [2009] QCA 408 at [21]; R v WAJ [2010] QCA 87 at [14].…
KFL v Commissioner of Police
[2023] QDC 20 Para 1

…rded. No reference was made to section 12(2) of the Act nor to any of the factors identified in the sub-sections. As observed by Fraser JA in R v WAJ [2010] QCA 87 at [15]:…
Clinton v Commissioner of Police
[2022] QDC 222 Para 11

…de to section 12(2) of the Penalties and Sentences Act 1992 (Qld), nor to any of the factors in the sub-sections. As observed by Fraser JA in R v WAJ [2010] QCA 87 at [15]: “Nevertheless, in the absence of any sentencing remarks expressly directed to the discretion or to the relevant provisions it is appropriate…
Taylor v Queensland Police Service
[2022] QDC 130 Para 9

…scretion miscarried. As to this, the reasons for judgment of Fraser JA (with whom the other members of the Court of Appeal agreed) in R v WAJ [2010] QCA 87 at [15] are relied upon; (g)as to the potential for re-exercising the discretion, the appellants submit: (i)they had made significant progress towards rehabi…
R v FDM
[2020] QChC 10 Para 1

…The Magistrate was referred to R v Cunningham [2014] QCA 88 and R v WJA [2010] QCA 87 as cases relevant to the recording of a conviction. In R v Cunningham1 , the court there was critical of the fact that there was no information put before the court to enable an assessment of the applicant’s rehabilitation gene…
R v Smith
[2019] QCA 186 Para 15

…objective comparison of the sentences manifests what Mason J called in Lowe v The Queen at 611, a “badge of unfairness” . ” [6][2010] QCA 87 at [12]. See also R v AAH [2009] QCA 321 at [10].…
R v KAR
[2018] QCA 211 Para 16

…n the assumption that the recording of a conviction will impinge adversely on a child’s rehabilitation and employment prospects.” [117] R v WAJ [2010] QCA 87, [14], R v BCO [2013] QCA 328, [21]. [118][2013] QCA 328, [21].…
Emr v Commissioner of Police
[2016] QChC 6 Para 1

…ngham [2014] QCA 88 where Daubney J, with whom Holmes JA (as her Honour then was) and Gotterson JA agreed, adopted comments of Fraser JA in R v WAJ [2010] QCA 87 where his Honour had said:…
Swain v QPS
[2015] QDC 9

…cumstances must result in a conclusion that the discretion miscarried and must therefore be exercise afresh. As observed by Justice Fraser in R v WAJ [2010] QCA 87 at 15:…
R v Cunningham
[2014] QCA 88 Para 1

…threatening violence, in which he discharged a firearm. He was sentenced to probation for nine months for that, but no conviction was recorded. [10][2010] QCA 87.…
R v TX
[2011] QCA 68 Para 1

…ot been identified in the indictment. Reference was also made to the applicant’s participation in YJC, a matter favourable to the applicant. [6][2010] QCA 87 at [14]-[15].…

View all 11 citing cases →

Cases cited in this decision · 9 of 9 shown

R v KAC
[2010] QCA 39 Para 1

…s made by the sentencing judge on the ground that the same sentence should be imposed in the fresh exercise of the sentencing discretion: see R v KAC [2010] QCA 39 at [17]-[18]. We were referred to cases where 13 year old children had committed a violent offence. In R v H [2000] QCA 196 this Court found it inapp…
R v SBP
[2009] QCA 408 Para 1

…he exercise of that discretion. The prima facie position under these provisions is that a conviction is not to be recorded against a child: R v SBP [2009] QCA 408 at [21]; R v B [1995] QCA 231. Section 184(1) provides that in considering whether or not to record a conviction a court must have regard to all the ci…
R v BBN
[2008] QCA 84 Para 1

…cing discretion. The sentences are well within the range suggested by reference to this Court’s decisions in R v S [1999] QCA 499 and R v BBN [2008] QCA 84. There is no substance in the applicant’s contention that the challenged sentences are manifestly excessive.…
R v J
[2000] QCA 489 Para 1

…ction for a violent offence but in addition to that offender’s young age there were quite strong personal factors favouring that approach. In R v J [2000] QCA 489 the Court found no error in the recording of the conviction for a violent offence committed by a 13 year old boy. At 15 and 16 years of age the applica…
R v H
[2000] QCA 196 Para 1

…ng discretion: see R v KAC [2010] QCA 39 at [17]-[18]. We were referred to cases where 13 year old children had committed a violent offence. In R v H [2000] QCA 196 this Court found it inappropriate to record a conviction for a violent offence but in addition to that offender’s young age there were quite strong p…
R v S
[1999] QCA 499 Para 1

…e plainly within the sentencing discretion. The sentences are well within the range suggested by reference to this Court’s decisions in R v S [1999] QCA 499 and R v BBN [2008] QCA 84. There is no substance in the applicant’s contention that the challenged sentences are manifestly excessive.…
Postiglione v the Queen
[1997] HCA 26

…84(1) Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, applied Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, applied R v B [1995] QCA 231, cited R v BBN [2008] QCA 84, cited R v H [2000] QCA 196, cited R v J [2000] QCA 489, cited R v KAC [2010] QCA 39, applied R v S [1999] QCA 499, cited R v SBP…
R v B
[1995] QCA 231 Para 1

…. The prima facie position under these provisions is that a conviction is not to be recorded against a child: R v SBP [2009] QCA 408 at [21]; R v B [1995] QCA 231. Section 184(1) provides that in considering whether or not to record a conviction a court must have regard to all the circumstances, including the cir…
Lowe v R
[1984] HCA 46

…convictions Youth Justice Act 1992 (Qld), s 175, s 176, s 183, s 184(1) Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, applied Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, applied R v B [1995] QCA 231, cited R v BBN [2008] QCA 84, cited R v H [2000] QCA 196, cited R v J [2000] QCA 489, cited…

Legislation cited in this decision · 2

Youth Justice Act 1992 (Qld)
175 2 mentions (from Para 1)
Juvenile Justice Act 1992 (Qld)
1 mention (from Para 1)

CITATION:	R v WAJ [2010] QCA 87
PARTIES:	R v WAJ (applicant)
FILE NO/S:	CA No 315 of 2009 DC No 3823 of 2009 DC No 3824 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Toowoomba
DELIVERED ON:	20 April 2010
DELIVERED AT:	Brisbane
HEARING DATE:	14 April 2010
JUDGES:	Muir and Fraser JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL –APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty and was convicted of five indictable offences and one summary offence – where the applicant was 16 years of age when the majority of offences were committed and when sentenced – where the applicant applied for leave to appeal on the grounds that the sentences were manifestly excessive in all the circumstances – whether the sentences imposed were manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL –APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where the applicant applied for leave to appeal on the grounds that the sentences were manifestly excessive when compared to the sentence imposed on a co-accused – whether the sentences were manifestly excessive when compared to the sentence imposed on a co-accused CRIMINAL LAW – APPEAL AND NEW TRIAL –APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant contended that the sentencing judge erred in recording convictions – whether the sentencing judge erred in recording convictions Youth Justice Act 1992 (Qld), s 175, s 176, s 183, s 184(1) Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, applied Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, applied R v B[1995] QCA 231, cited R v BBN[2008] QCA 84, cited R v H[2000] QCA 196, cited R v J[2000] QCA 489, cited R v KAC[2010] QCA 39, applied R v S[1999] QCA 499, cited R v SBP[2009] QCA 408, cited
COUNSEL:	The applicant appeared on his own behalf M B Lehane for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent