R v WAZ - [2015] QCA 16

SUPREME COURT OF QUEENSLAND

CITATION:

R v WAZ [2015] QCA 16

PARTIES:

R
v
WAZ
(applicant)

FILE NO/S:

CA No 125 of 2014
DC No 73 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Beenleigh

DELIVERED ON:

24 February 2015

DELIVERED AT:

Brisbane

HEARING DATE:

29 October 2014

JUDGES:

Fraser and Gotterson JJA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Grant leave to appeal against sentence.

2. Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to thirteen counts on the indictment – where the offences were attempted unlawful use of a motor vehicle with damage (Count 1), armed robbery (Counts 2, 3, 4, 5, 6 & 14), attempted unlawful use of a motor vehicle (Count 7), armed robbery in company (Counts 8 & 10), unlawfully using a motor vehicle (Counts 9 & 11), stealing (Count 12) and fraud (Count 13) – where the applicant was sentenced to nine months’ detention for Count 1, to three years’ detention for each of Counts 2, 3, 4, 5, 6, 8, 10 and 14, to six months’ detention for Count 7, to twelve months’ detention for each of Counts 9 and 11 and to seven days’ detention for each of Counts 12 and 13 – where all sentences were concurrent and the applicant was ordered to serve 50 per cent of each sentence – where no convictions were recorded – whether the sentences imposed on Counts 2, 3, 4, 5, 6, 7, 8, 10 and 14 were manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was a child at the time of the offending but had an adult co-offender – where the sentencing judge used the sentence imposed on the adult co-offender as the starting point for determining the applicant’s sentence – whether the sentencing judge erred – whether the applicant has a justifiable sense of grievance arising from a comparison between the period he is required to serve in detention before his supervised release and the period his adult co-offender is required to serve in custody before his eligibility for release on parole

Charter of Youth Justices Principles (Qld), s 1
Criminal Appeal Act 1912 (NSW), s 6(3)
Criminal Code (Qld), s 668E(3)
Penalties and Sentences Act 1992 (Qld), s 9, s 9(2)
Youth Justice Act 1992 (Qld), s 150, s 150(2)(b), s 150(5), s 227, s 227(2)
Youth Justice and Other Legislation Amendment Act 2014 (Qld), s 34

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Kentwell v The Queen (2014) 88 ALJR 947; [2014] HCA 37, followed
R v DAZ [2012] QCA 31, cited
R v Maygar; ex parte Attorney-General (Qld); R v…

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 WAZ

Details

AGLC: R v WAZ [2015] QCA 16
Case: [2015] QCA 16
Decision Date: 24 February 2015

CaseChat Overview and Summary

The appellant, WAZ, appealed against the sentences imposed on him following his guilty plea to thirteen counts, including attempted unlawful use of a motor vehicle with damage, armed robbery, unlawfully using a motor vehicle, stealing and fraud. WAZ was sentenced to various terms of detention, with all sentences running concurrently and a requirement to serve 50 per cent of each sentence. No convictions were recorded. The central legal issues in the appeal were whether the sentences for certain counts were manifestly excessive and whether the sentencing judge erred by using the sentence of the adult co-offender as a starting point.

The court considered the principle that a sentence is manifestly excessive if it is outside the range of sentences that a properly directed sentencing judge could impose. The court found that the sentences for Counts 2, 3, 4, 5, 6, 7, 8, 10 and 14 were not manifestly excessive, as they were within the range of sentences that could be considered appropriate for the nature and circumstances of the offences. Additionally, the court held that the sentencing judge did not err by using the sentence of the adult co-offender as a starting point, as it was an acceptable approach given the co-offender’s greater culpability. The court also rejected the appellant’s claim of a justifiable sense of grievance regarding the disparity in the periods before supervised release and parole eligibility, stating that it did not amount to a significant error affecting the overall fairness of the sentence.

After careful consideration, the court granted leave to appeal against the sentence but ultimately dismissed the appeal. The reasoning was that the sentences were not manifestly excessive, and there was no significant error in the sentencing process. The court’s decision was that the appeal against the sentence was without merit, and the original sentences stood as imposed.

Orders

Orders of the court

1. Grant leave to appeal against sentence.

2. Appeal dismissed.

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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CITATION:	R v WAZ [2015] QCA 16
PARTIES:	R v WAZ (applicant)
FILE NO/S:	CA No 125 of 2014 DC No 73 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Beenleigh
DELIVERED ON:	24 February 2015
DELIVERED AT:	Brisbane
HEARING DATE:	29 October 2014
JUDGES:	Fraser and Gotterson JJA and Henry J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant leave to appeal against sentence. 2. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to thirteen counts on the indictment – where the offences were attempted unlawful use of a motor vehicle with damage (Count 1), armed robbery (Counts 2, 3, 4, 5, 6 & 14), attempted unlawful use of a motor vehicle (Count 7), armed robbery in company (Counts 8 & 10), unlawfully using a motor vehicle (Counts 9 & 11), stealing (Count 12) and fraud (Count 13) – where the applicant was sentenced to nine months’ detention for Count 1, to three years’ detention for each of Counts 2, 3, 4, 5, 6, 8, 10 and 14, to six months’ detention for Count 7, to twelve months’ detention for each of Counts 9 and 11 and to seven days’ detention for each of Counts 12 and 13 – where all sentences were concurrent and the applicant was ordered to serve 50 per cent of each sentence – where no convictions were recorded – whether the sentences imposed on Counts 2, 3, 4, 5, 6, 7, 8, 10 and 14 were manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was a child at the time of the offending but had an adult co-offender – where the sentencing judge used the sentence imposed on the adult co-offender as the starting point for determining the applicant’s sentence – whether the sentencing judge erred – whether the applicant has a justifiable sense of grievance arising from a comparison between the period he is required to serve in detention before his supervised release and the period his adult co-offender is required to serve in custody before his eligibility for release on parole Charter of Youth Justices Principles (Qld), s 1 Criminal Appeal Act 1912 (NSW), s 6(3) Criminal Code (Qld), s 668E(3) Penalties and Sentences Act 1992 (Qld), s 9, s 9(2) Youth Justice Act 1992 (Qld), s 150, s 150(2)(b), s 150(5), s 227, s 227(2) Youth Justice and Other Legislation Amendment Act 2014 (Qld), s 34 House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Kentwell v The Queen (2014) 88 ALJR 947; [2014] HCA 37, followed R v DAZ [2012] QCA 31, cited R v Maygar; ex parte Attorney-General (Qld); R v…