R v Way; Ex parte

Case [2013] QCA 398

SUPREME COURT OF QUEENSLAND

CITATION:

R v WAY; Ex parte Attorney-General (Qld) [2013] QCA 398

PARTIES:

R
v
WAY
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 200 of 2013
SC No 595 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Attorney-General (Qld)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

3 December 2013

JUDGES:

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

ORDERS:

Application for leave to amend the grounds of appeal refused.1.    

Appeal dismissed.2.    

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the 16 year old respondent attempted to murder a 14 year old schoolgirl, stabbing her about 12 times with a knife in her neck, head, shoulders, upper back and, when she was trying to protect herself, her arms and hands – where the respondent and complainant were not known to each other prior to the attack but did attend the same school – where the respondent chose the complainant because she was female and his physical inferior and the attack took place in the girls' toilets – where the respondent had fantasised about harming others and then killing himself – where the respondent had no diagnosable mental illness – where the respondent surrendered to the police after the attack and subsequently pleaded guilty to attempted murder 13 months after arrest – where the respondent was sentenced under the Youth Justice Act 1992 (Qld) ("YJ Act") to four years detention to be released after serving 50 per cent – where the appellant contends that the sentence was manifestly inadequate – where the appellant also seeks leave to amend the notice of appeal to add the ground that the sentencing judge erred in failing to determine that the offence was a "particularly heinous offence" within the meaning of s 176(3)(b)(ii) of the YJ Act, the effect of which would be to increase the maximum penalty from 10 years detention to life – where the appellant contends that, merely because the prosecutor did not submit that the respondent should have been sentenced under s 176(3)(b)(ii) at first instance does not absolve the sentencing judge from the responsibility of imposing a proper sentence – where the respondent contends that the matter in s 176(3)(b)(ii) is a "circumstance of aggravation" within the meaning of s 1 Criminal Code 1899 (Qld) and, as the prosecutor did not plead the circumstance of aggravation in the indictment, the appellant is precluded from now relying on it – whether the sentencing judge erred in failing to determine that the offence was a "particularly heinous offence" within the meaning of s 176(3)(b)(ii) – whether the matter in s 176(3)(b)(ii) is a "circumstance of aggravation" within the meaning of s 1 Criminal Code – whether the sentence was…

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AGLC
R v WAY; Ex parte Attorney-General (Qld) [2013] QCA 398
Case
[2013] QCA 398
Decision Date

CaseChat Overview and Summary

The case before the court involved an appeal against the sentence imposed on a 16-year-old who had pleaded guilty to attempting to murder a 14-year-old schoolgirl. The respondent had stabbed the victim multiple times in various parts of her body, including her neck, head, shoulders, upper back, and arms. The attack was premeditated and the respondent chose the victim because she was female and physically inferior to him. The respondent had fantasies about harming others before taking his own life and had no diagnosable mental illness. After the attack, the respondent surrendered to the police and pleaded guilty to the offence 13 months later. The respondent was sentenced to four years detention under the Youth Justice Act 1992 (Qld) with a non-parole period of 50 per cent. The appellant, seeking to appeal against the sentence, contended that it was manifestly inadequate and also sought leave to amend the notice of appeal to include the ground that the sentencing judge erred in failing to determine that the offence was a "particularly heinous offence" within the meaning of s 176(3)(b)(ii) of the YJ Act.

The primary legal issues before the court were whether the sentencing judge erred in failing to determine that the offence was a "particularly heinous offence" within the meaning of s 176(3)(b)(ii) of the YJ Act, and whether this matter constituted a "circumstance of aggravation" within the meaning of s 1 Criminal Code 1899 (Qld). The court also considered whether the sentence was manifestly inadequate. The respondent argued that the appellant was precluded from relying on s 176(3)(b)(ii) because the prosecutor did not plead the circumstance of aggravation in the indictment. The appellant contended that the sentencing judge had an independent duty to determine whether the offence was a "particularly heinous offence" and that the prosecutor's failure to plead this did not absolve the sentencing judge from imposing a proper sentence.

The court held that the application for leave to amend the grounds of appeal was refused and dismissed the appeal. In reaching this decision, the court found that the matter in s 176(3)(b)(ii) was indeed a "circumstance of aggravation" within the meaning of s 1 Criminal Code, and thus the appellant was precluded from relying on it. The court also found that the sentencing judge did not err in failing to determine that the offence was a "particularly heinous offence" as the relevant section of the YJ Act did not require the judge to make such a determination. Lastly, the court held that the sentence was not manifestly inadequate given the circumstances of the case.

The final orders of the court were to refuse the application for leave to amend the grounds of appeal and to dismiss the appeal against the sentence.

Orders

Orders of the court

Application for leave to amend the grounds of appeal refused.1.

Appeal dismissed.2.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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