R v Yak - [2021] QCA 214

SUPREME COURT OF QUEENSLAND

CITATION: R v Yak [2021] QCA 214

PARTIES:

R v YAK, Phillip Guy
(applicant)
FILE NO/S: CA No 169 of 2020
DC No 1180 of 2020
DC No 1541 of 2020
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING District Court at Brisbane – Date of Sentence: 31 July 2020
COURT: (Clare SC DCJ)
DELIVERED ON: Date of Order: 8 June 2021
Date of Publication of Reasons: 5 October 2021
DELIVERED AT: Brisbane
HEARING DATE: 8 June 2021
JUDGES: Sofronoff P and Morrison JA and Flanagan J
ORDER: Date of Order: 8 June 2021
Final Orders: Refer Appendix “A”.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE –
SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
– where the applicant was convicted on multiple personal and

property related offences – where the applicant was sentenced to a head sentence of eight years imprisonment – where the
applicant appeals the sentence on the grounds of manifest
excess and specific error – whether the sentencing judge erred

in not taking into account the entire period of pre-sentence custody in remand as part of a pre-sentence custody declaration
– whether the sentencing judge failed to take into account the
applicant’s guilty plea resulting in the applicant becoming
eligible for parole after serving four out of eight years
imprisonment – whether this rendered the sentence manifestly
excessive
R v Carlisle [2017] QCA 258, cited
COUNSEL: J Robson for the applicant
D Nardone for the respondent
SOLICITORS: Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the
respondent

SOFRONOFF P: The applicant is now a 24 year old man. Since he was 16 years old he has spent more than half of his life in detention or in prison. With two exceptions, his many offences follow a pattern. His offences have been break and enter offences, trespass, stealing, receiving tainted property, dishonest application of property, unlawful motor vehicle use and associated offences involving assaults on police. The aetiology for this unhappy criminal history is easy to find. After a childhood in a family in which his parents struggled to find enough money to feed themselves and their children, and after his parents separated, the applicant lost interest in school and, almost inevitably, somebody introduced him to methylamphetamine, that most addictive of drugs. He has been addicted to this drug since he was 14 and his criminal history shows several drug offences.
Nonetheless, the applicant managed to earn a Certificate III in Warehousing and a Certificate II in Construction, as well as a first aid certificate, from the Ipswich Bremer TAFE. He has had employment, usually in part-time roles but he once had a full-time job as a forklift driver. He also once had a relationship with a young woman, who became pregnant to him but lost the baby.
His first set of offences were committed in 2012 when he was 15 years old. They were break and…

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 Yak

Details

AGLC: R v Yak [2021] QCA 214
Case: [2021] QCA 214
Decision Date: 5 October 2021

CaseChat Overview and Summary

The appellant in this case, R v Yak, appealed against their sentence on multiple grounds following a conviction for various personal and property-related offences. The sentence imposed was an eight-year imprisonment term. The primary grounds of appeal included the claim that the sentence was manifestly excessive due to the sentencing judge's failure to take into account the entire period of pre-sentence custody in remand, and the failure to acknowledge the appellant's guilty plea, which would have made them eligible for parole after serving four out of the eight years.

The legal issues before the court were whether the sentencing judge's failure to consider the full period of pre-sentence custody constituted a specific error, and whether this error rendered the sentence manifestly excessive. The appellant argued that the total pre-sentence custody period should have been declared, and that the failure to do so resulted in a sentence that was too harsh given the appellant's early parole eligibility due to their guilty plea.

The court examined the sentencing judge's approach and concluded that there was indeed a specific error in the sentencing process due to the omission of the entire pre-sentence custody period. However, despite this error, the court determined that the sentence was not manifestly excessive. The court noted that the overall length of the sentence, coupled with the early parole eligibility, did not result in a manifestly excessive punishment. Therefore, the appeal against the sentence was dismissed.

No additional paragraph is needed as the orders are already detailed in the document.

Orders

Orders of the court

Date of Order: 8 June 2021

Final Orders: Refer Appendix “A”.

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 Yak [2021] QCA 214
PARTIES:	R v YAK, Phillip Guy
(applicant)
FILE NO/S:	CA No 169 of 2020 DC No 1180 of 2020 DC No 1541 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING	District Court at Brisbane – Date of Sentence: 31 July 2020
COURT:	(Clare SC DCJ)
DELIVERED ON:	Date of Order: 8 June 2021 Date of Publication of Reasons: 5 October 2021
DELIVERED AT:	Brisbane
HEARING DATE:	8 June 2021
JUDGES:	Sofronoff P and Morrison JA and Flanagan J
ORDER:	Date of Order: 8 June 2021
Final Orders: Refer Appendix “A”.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE –
SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
– where the applicant was convicted on multiple personal and
property related offences – where the applicant was sentenced to a head sentence of eight years imprisonment – where the
applicant appeals the sentence on the grounds of manifest
excess and specific error – whether the sentencing judge erred
in not taking into account the entire period of pre-sentence custody in remand as part of a pre-sentence custody declaration
– whether the sentencing judge failed to take into account the
applicant’s guilty plea resulting in the applicant becoming
eligible for parole after serving four out of eight years
imprisonment – whether this rendered the sentence manifestly
excessive
R v Carlisle [2017] QCA 258, cited
COUNSEL:	J Robson for the applicant D Nardone for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent