R v Yanner & Yanner, ex parte A-G - [1999] QCA 515

SUPREME COURT OF QUEENSLAND

CITATION: R v Yanner & Yanner, ex parte A-G [1999] QCA 515

PARTIES: R
v
YANNER, Bruce Lee and
YANNER, Murrandoo Bulanyi Mungabayi
(Respondents)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(Appellant)

FILE NO/S: CA No 296 of 1999, CA No 297 of 1999

DIVISION: Court of Appeal

PROCEEDING: Attorney-General's appeal against sentence

ORIGINATING COURT:
District Court at Mt Isa

DELIVERED ON: 10 December 1999

DELIVERED AT: Brisbane

HEARING DATE: 1 December 1999

JUDGES: de Jersey CJ (diss), McMurdo P and Thomas JA
Joint reasons for judgment of McMurdo P and Thomas JA, de Jersey CJ dissenting.

ORDER:
In appeal CA No 296 of 1999, the appeal is dismissed.
In appeal CA No 297 of 1999, the appeal is allowed. Sentences below varied by deleting the orders for three years probation and 240 hours community service and ordering instead that Murrandoo Yanner be sentenced to imprisonment for 18 months wholly suspended for a period of four years.

CATCHWORDS:
CRIMINAL LAW – PARTICULAR OFFENCES – OTHER OFFENCES AGAINST THE PERSON – ASSAULTS – SENTENCING

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT

APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON

Wilful damage and assaults on four separate persons – previous decisions of Court of Appeal discussed – concession made by learned Crown prosecutor below – whether appropriate to give effect to submissions now made on behalf of Attorney-General inconsistent with concessions below – prominent citizen given non-custodial sentence for relatively serious offences – legal difficulties in reformulating appropriate order – substituted order of imprisonment for 18 months, wholly suspended for four years

R v Burnham & McLean CA Nos 398, 400 of 1998, 25 March 1999, distinguished
R v Conquest, ex parte Attorney-General CA No 295 of 1995, 19 December 1995, applied
R v Gritt CA No 95 of 1993, 3 June 1993, distinguished
R v Harris, CA No 371 of 1996, 22 October 1996, discussed
R v Hughes [1999] 1 Qd R 389, (1998) 100 A Crim R 336, considered
R v Kazakoff, ex parte Attorney-General CA No 236 of 1998, 27 August 1998, distinguished
R v M, ex parte Attorney-General [1999] QCA 442; CA No 251 of 1999, 2 November 1999, considered
R v Packer, ex parte Attorney-General CA No 62 of 1998, 6 May 1998, discussed
R v Rowe & Talbott CA Nos 149, 152 of 1996, 23 July 1996, discussed
R v Smallwood, ex parte Attorney-General CA No 30 of 1997, 15 April 1997, discussed
R v Tricklebank [1994] 1 Qd R 330, (1993) 69 A Crim R 351, discussed
R v Walsh, Sayer & Thompson, ex parte Attorney-General CA Nos 158-160 of 1998, 28 July 1998, applied

COUNSEL: Mrs L Clare for the appellant
Mr B Devereaux for the respondent Murrandoo Yanner

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.

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Details

Case: [1999] QCA 515
Decision Date: 10 December 1999

CaseChat Overview and Summary

The appeals in Yanner and Yanner involved two defendants, Murrandoo Yanner and his son, who were convicted of various serious offences against the person, including wilful damage and assault. The Attorney-General appealed the sentences handed down in the County Court, arguing that the sentences were unduly lenient. The Court of Appeal had to decide whether the sentences were manifestly inadequate and whether the appeal against sentence should be allowed.

The primary legal issue before the Court was whether the original sentences of three years probation and 240 hours community service were manifestly inadequate. The Crown prosecutor had made certain concessions during the original sentencing hearing which the Court had to consider in light of the Attorney-General's appeal. The Court had to determine if it was appropriate to disregard these concessions and reformulate the sentences in a manner that better reflected the seriousness of the crimes committed.

The Court of Appeal found that the original sentences were indeed manifestly inadequate, given the nature and seriousness of the offences. Despite the concessions made by the Crown prosecutor, the Court considered that the sentences did not adequately reflect the gravity of the crimes committed by the defendants. The Court varied the sentences by imposing a term of imprisonment for 18 months, wholly suspended for a period of four years. This decision was made to ensure that the sentences appropriately reflected the seriousness of the offences, while also taking into account the unique circumstances of the case.

In appeal CA No 296 of 1999, the appeal is dismissed. In appeal CA No 297 of 1999, the appeal is allowed. Sentences below varied by deleting the orders for three years probation and 240 hours community service and ordering instead that Murrandoo Yanner be sentenced to imprisonment for 18 months wholly suspended for a period of four years.

Orders

Orders of the court

In appeal CA No 296 of 1999, the appeal is dismissed.

In appeal CA No 297 of 1999, the appeal is allowed. Sentences below varied by deleting the orders for three years probation and 240 hours community service and ordering instead that Murrandoo Yanner be sentenced to imprisonment for 18 months wholly suspended for a period of four years.

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 Yanner & Yanner, ex parte A-G [1999] QCA 515
PARTIES:	R v YANNER, Bruce Lee and YANNER, Murrandoo Bulanyi Mungabayi (Respondents) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (Appellant)
FILE NO/S:	CA No 296 of 1999, CA No 297 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Attorney-General's appeal against sentence
ORIGINATING COURT:	District Court at Mt Isa
DELIVERED ON:	10 December 1999
DELIVERED AT:	Brisbane
HEARING DATE:	1 December 1999
JUDGES:	de Jersey CJ (diss), McMurdo P and Thomas JA Joint reasons for judgment of McMurdo P and Thomas JA, de Jersey CJ dissenting.
ORDER:	In appeal CA No 296 of 1999, the appeal is dismissed. In appeal CA No 297 of 1999, the appeal is allowed. Sentences below varied by deleting the orders for three years probation and 240 hours community service and ordering instead that Murrandoo Yanner be sentenced to imprisonment for 18 months wholly suspended for a period of four years.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OTHER OFFENCES AGAINST THE PERSON – ASSAULTS – SENTENCING CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON Wilful damage and assaults on four separate persons – previous decisions of Court of Appeal discussed – concession made by learned Crown prosecutor below – whether appropriate to give effect to submissions now made on behalf of Attorney-General inconsistent with concessions below – prominent citizen given non-custodial sentence for relatively serious offences – legal difficulties in reformulating appropriate order – substituted order of imprisonment for 18 months, wholly suspended for four years R v Burnham & McLean CA Nos 398, 400 of 1998, 25 March 1999, distinguished R v Conquest, ex parte Attorney-General CA No 295 of 1995, 19 December 1995, applied R v Gritt CA No 95 of 1993, 3 June 1993, distinguished R v Harris, CA No 371 of 1996, 22 October 1996, discussed R v Hughes [1999] 1 Qd R 389, (1998) 100 A Crim R 336, considered R v Kazakoff, ex parte Attorney-General CA No 236 of 1998, 27 August 1998, distinguished R v M, ex parte Attorney-General [1999] QCA 442; CA No 251 of 1999, 2 November 1999, considered R v Packer, ex parte Attorney-General CA No 62 of 1998, 6 May 1998, discussed R v Rowe & Talbott CA Nos 149, 152 of 1996, 23 July 1996, discussed R v Smallwood, ex parte Attorney-General CA No 30 of 1997, 15 April 1997, discussed R v Tricklebank [1994] 1 Qd R 330, (1993) 69 A Crim R 351, discussed R v Walsh, Sayer & Thompson, ex parte Attorney-General CA Nos 158-160 of 1998, 28 July 1998, applied
COUNSEL:	Mrs L Clare for the appellant Mr B Devereaux for the respondent Murrandoo Yanner