R v WAN - [2012] QCA 21

SUPREME COURT OF QUEENSLAND

CITATION:

R v WAN [2012] QCA 21

PARTIES:

R
v
WAN
(applicant/appellant)

FILE NO/S:

CA No 191 of 2011
DC No 22 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Southport

DELIVERED ON:

24 February 2012

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2012

JUDGES:

Margaret McMurdo P and Fraser and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Application for leave to appeal against sentence granted.

2.    Appeal against sentence allowed to the extent of setting aside the sentence imposed on count 2 in indictment 34/10 and substituting a sentence of two years detention with release after 50 per cent.

3.    Order 4 in the court order sheet attached to indictments 748/09, 34/10 and 124/10 is amended by deleting "748/09" and substituting "124/10".

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant pleaded guilty to two counts of robbery in company with personal violence, burglary and wilful damage, stealing, doing grievous bodily harm and threatening violence at night – where the appellant was a child under the Youth Justice Act 1992 (Qld) – where appellant sentenced to three years detention to serve 50 per cent on burglary and wilful damage – where maximum penalty was five years detention under s 176 Youth Justice Act 1992 (Qld) – whether sentence was manifestly excessive

Youth Justice Act 1992 (Qld), s 3, s 176, sch 1

COUNSEL:

D Shepherd for the applicant/appellant
S P Vasta for the respondent

SOLICITORS:

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

MARGARET McMURDO P: The applicant pleaded guilty on 1 March 2011 to six offences committed on three separate occasions and charged in three indictments. He was a child under the Youth Justice Act 1992 (Qld) at the time of the commission of the offences and at sentence. The first indictment (748/09) contained two counts of robbery in company with personal violence both committed on 15 December 2008. The second indictment (124/2010) contained one count of grievous bodily harm committed on 2 March 2009. The third indictment (34/2010) contained threatening violence at night (count 1), burglary and wilful damage (count 2) and stealing (count 3) all committed on 5 July 2009. On 3 March 2011, the court ordered that a pre-sentence report be prepared in respect of the applicant. The court heard submissions as to the sentence on 3 June 2011. On 16 June 2011 the applicant was sentenced to two years detention to serve 50 per cent on count 1 and three years probation on count 2 on the first indictment; 18 months detention to serve 50 per cent on the count of grievous bodily harm on the second indictment; and two years probation on counts 1 and 3 and three years detention to serve 50 per cent on count…

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 WAN

Details

AGLC: R v WAN [2012] QCA 21
Case: [2012] QCA 21
Decision Date: 24 February 2012

CaseChat Overview and Summary

In the case of R v WAN, the appellant, a minor, was convicted and sentenced for multiple criminal offences, including robbery in company with personal violence, burglary, wilful damage, stealing, grievous bodily harm, and threatening violence at night. The appellant, who was subject to the Youth Justice Act 1992 (Qld), was sentenced to three years detention, to serve 50 per cent on the burglary and wilful damage charge. The maximum penalty allowable under the Act was five years detention. The appellant appealed against the sentence, arguing that it was manifestly excessive.

The primary legal issue for the court was whether the sentence imposed on the appellant was manifestly excessive. The court had to consider whether the sentence was so disproportionate to the nature and circumstances of the offences that it could be considered unjust. The court also needed to determine whether the sentence was adequate to achieve the purposes of the Youth Justice Act, including punishment, deterrence, rehabilitation, and denunciation.

The court found that the sentence imposed on the appellant was manifestly excessive. The court considered that the appellant's age and the fact that he was a first offender were significant mitigating factors. The court also noted that the sentence imposed on the appellant was more severe than those imposed on his co-offenders. The court held that the sentence was disproportionate to the nature and circumstances of the offences and did not achieve the purposes of the Youth Justice Act. The court allowed the appeal against the sentence, substituting a sentence of two years detention with release after 50 per cent on the burglary and wilful damage charge. The court also amended the court order sheet to reflect the substitution of the sentence.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal against sentence allowed to the extent of setting aside the sentence imposed on count 2 in indictment 34/10 and substituting a sentence of two years detention with release after 50 per cent.

3. Order 4 in the court order sheet attached to indictments 748/09, 34/10 and 124/10 is amended by deleting "748/09" and substituting "124/10".

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.

CITATION:	R v WAN [2012] QCA 21
PARTIES:	R v WAN (applicant/appellant)
FILE NO/S:	CA No 191 of 2011 DC No 22 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Southport
DELIVERED ON:	24 February 2012
DELIVERED AT:	Brisbane
HEARING DATE:	3 February 2012
JUDGES:	Margaret McMurdo P and Fraser and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted. 2. Appeal against sentence allowed to the extent of setting aside the sentence imposed on count 2 in indictment 34/10 and substituting a sentence of two years detention with release after 50 per cent. 3. Order 4 in the court order sheet attached to indictments 748/09, 34/10 and 124/10 is amended by deleting "748/09" and substituting "124/10".
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant pleaded guilty to two counts of robbery in company with personal violence, burglary and wilful damage, stealing, doing grievous bodily harm and threatening violence at night – where the appellant was a child under the Youth Justice Act 1992 (Qld) – where appellant sentenced to three years detention to serve 50 per cent on burglary and wilful damage – where maximum penalty was five years detention under s 176 Youth Justice Act 1992 (Qld) – whether sentence was manifestly excessive Youth Justice Act 1992 (Qld), s 3, s 176, sch 1
COUNSEL:	D Shepherd for the applicant/appellant S P Vasta for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent