R v Young; ex parte - [1999] QCA 335

99.335

COURT OF APPEAL

McPHERSON JA DERRINGTON J MACKENZIE J

CA No 212 of 1999
THE QUEEN
v.
DAMIAN NATHANIEL YOUNG Respondent

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE
..DATE 19/08/99
190899 T7/SJ3 M/T COA199/99
DERRINGTON J: On 28 May 1999 the respondent was sentenced
on two counts; the first of attempted armed robbery on 7
September 1998, for which he was sentenced to three years
probation, and the second for an assault with intent to rape
on 15 November 1998, for which he was sentenced to a 12
months intensive correction order with a declaration that
179 days had been spent in pre-sentence custody in respect
of the offence and that it should be deemed time already
served under the sentence of assault with intent to rape.

It should be noted, because it has some significance, that the charge of assault with intent to rape was substituted by the Crown and a plea of guilty to that was accepted in lieu of the original charge of attempted rape. The charge of attempted armed robbery carries a maximum of 14 years and the charge of assault with intent to rape carries a maximum sentence of seven years imprisonment, but in the present circumstances it is the latter case which is the more serious.

The respondent was a 24-year-old man. He had some learning
difficulties and was a little below normal intelligence. He
appeared to practise unemployment and spent most of his days
taking drugs, particularly marijuana. In respect of the
first count, he had attended at a hairdresser's premises for
a haircut and during the course of that decided to rob the
hairdresser, a female. He produce a Swiss Army knife and
demanded money. She offered him the money in the till but
190899 T7/SJ3 M/T COA199/99
he refused it and ordered her to shut up the front door of
the shop. She was able to flee to a neighbouring shop for
help and the respondent ran away. The serious factor about
that is that he produced a knife in the course of that
robbery although in his favour it must be acknowledged that
there is no suggestion that it was a premeditated offence.

The second count occurred in the following November - that is, only two months later - while the respondent was still on bail in respect of the first count.

The respondent was apprehended, indeed on the same day, in respect of the first count and admitted the offence claiming that he had formed the intention only during the course of the haircut and that he wanted money for drugs. He said that he had told the complainant to shut the front door because he had intended to leave by the back door and all of that probably accounts for his admission to bail. However, as I said, while he was on bail within two months he committed the second offence.

He was on a beach and saw a 16-year-old schoolgirl who was
also at the beach which was…

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 Young; ex parte

Details

AGLC: R v Young; ex parte [1999] QCA 335
Case: [1999] QCA 335
Decision Date: 19/08/1999

CaseChat Overview and Summary

The case of R v Young; ex parte involved the respondent, Damian Nathaniel Young, who was appealing against the sentences imposed by the trial judge. The appeal was brought by the Attorney-General of Queensland against the sentences imposed on Young for two separate offences: attempted armed robbery on 7 September 1998 and assault with intent to rape on 15 November 1998. The trial judge had sentenced Young to three years' probation for the attempted armed robbery and a 12-month intensive correction order for the assault with intent to rape, deeming the 179 days spent in pre-sentence custody as time already served. The central legal issue was whether the sentences imposed were manifestly inadequate given the gravity of the offences, especially the assault with intent to rape involving a young girl.

The Court of Appeal held that the sentences imposed were manifestly inadequate. The Court found that the trial judge had not fully considered the gravity of the offences, particularly the assault with intent to rape. The Court noted the respondent's intellectual deficit, drug use, and lack of remorse, but emphasised the need for a custodial sentence to act as a deterrent. The Court imposed a three-year prison sentence for the assault with intent to commit rape and a two-year prison sentence for the count of armed robbery, to be served concurrently. The Court also recommended that Young be eligible for parole after 12 months, taking into account his early guilty plea and other mitigating factors. The Court allowed the appeal, set aside the original sentences, and imposed the new sentences with a recommendation for early parole and a declaration regarding the period already served.

In conclusion, the Court of Appeal allowed the appeal, set aside the original sentences, and imposed new sentences of three years for the assault with intent to commit rape and two years for the attempted armed robbery, to be served concurrently. The Court issued a warrant for the arrest of the respondent, which would lie in the Registry for seven days or until further order.

Orders