The Queen v W - [1998] QCA 281

IN THE COURT OF APPEAL [1998] QCA 281

SUPREME COURT OF QUEENSLAND

C.A. No. 85 of 1998.

Brisbane

[R v. W; ex parte A-G]

THE QUEEN

Respondent

and

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

Appellant

________________________________________________________________________

McMurdo P.
Pincus J.A.
Ambrose J.

________________________________________________________________________

Judgment delivered 18 September 1998

Judgment of the Court

________________________________________________________________________

ATTORNEY-GENERAL’S APPEAL AGAINST SENTENCE ALLOWED. SENTENCE IMPOSED BELOW SET ASIDE AND IN LIEU THEREOF THE RESPONDENT IS SENTENCED TO SERVE A PERIOD OF DETENTION OF 9 YEARS. CONFIRM ORDER THAT RESPONDENT BE RELEASED FROM DETENTION AFTER SERVING 50% OF THE PERIOD OF DETENTION.

________________________________________________________________________

CATCHWORDS: CRIMINAL LAW - Attorney-General’s appeal against sentence - murder - juvenile offender - respondent sentenced to 5 years detention with order made that he be released after serving 50% of that period - whether principles of sentencing of juvenile offender are partly contained in the Penalties and Sentences Act - whether sentencing judge attached too little importance to the harm to the victim and general deterrence - whether sentencing judge erred in taking into account as a mitigating factor the possibility that alcohol was partly responsible for respondent’s behaviour.
Juvenile Justice Act 1992, ss. 121, 188
Penalties and Sentences Act 1992, ss. 4, 6, 9, 109
Penalties and Sentences (Serious Violent Offences) Amendment Act 1997

Counsel:Mr N Clark for the appellant.
Mrs D Richards for the respondent.

Solicitors:Director of Public Prosecutions (Queensland) for the appellant.
Legal Aid Queensland for the respondent.

Hearing date: 26 August 1998.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 18 September 1998

1This is an Attorney-General’s appeal against sentence. The respondent was convicted in the Supreme Court, after a trial, of the offence of murder. He was 16 years of age (nearly 17) when he committed the murder and was sentenced to 5 years detention with an order being made that he be released after serving 50% of that period. After some events which appear to us of limited relevance, the deceased had friends convey to the respondent a challenge to fight in the local school ground and that was declined. Then the deceased and friends came from the school ground to the vicinity of the house where they knew the respondent to be. The respondent was seen with a knife in his hand performing martial arts movements. The respondent challenged the deceased to a fight but the deceased said that he would fight only if the knife were put away. There were exchanges of aggressive remarks for quite some time between the two opponents, each in company with friends; the two groups were at this time on opposite sides of a road. One of the deceased’s friends provided him with a junior baseball bat and the deceased ran towards the respondent, brandishing it while calling out. The respondent and his friends leapt over a fence from the footpath into a house yard and the judge thought that it was probably the case that the deceased banged the baseball bat on the fence 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 The Queen v W

Details

AGLC: The Queen v W [1998] QCA 281
Case: [1998] QCA 281
Decision Date: 18 September 1998

CaseChat Overview and Summary

The Queen v W involved an appeal by the Attorney-General against the sentence of a juvenile offender convicted of murder. The offender was sentenced to five years' detention, with a condition that he be released after serving 50% of that period. The court was tasked with determining whether the sentencing judge appropriately considered the principles of sentencing for juvenile offenders, specifically under the Penalties and Sentences Act. The appeal also questioned whether the sentencing judge had placed insufficient emphasis on the harm caused to the victim and the need for general deterrence. Additionally, the appeal argued that the sentencing judge erred by considering the possibility that alcohol contributed to the offender's actions as a mitigating factor.

The central legal issues addressed by the court included whether the sentencing judge had adequately balanced the principles for juvenile sentencing, the significance of the harm to the victim, and the importance of general deterrence. The court also examined whether the sentencing judge appropriately considered the mitigating factor of alcohol's influence on the offender's actions. The appeal questioned if the sentencing judge had correctly applied the statutory requirements and had sufficiently considered the objectives of juvenile sentencing.

The court found that the sentencing judge had indeed erred in several respects. The court held that the sentencing judge had not given sufficient weight to the harm caused to the victim and the need for general deterrence. Additionally, the court determined that the sentencing judge had misapplied the law by considering alcohol as a mitigating factor. The court concluded that these errors warranted the intervention of the appeal process to ensure that the principles of juvenile sentencing were correctly applied. The appeal was upheld, and the matter was remitted to the sentencing court for reconsideration.

The final orders of the court included the quashing of the original sentence and the remittal of the matter to the sentencing court for reconsideration in light of the court's findings. The court emphasized the importance of correctly applying the principles of juvenile sentencing, particularly in relation to the harm caused to the victim and the need for general deterrence. The court also highlighted the inappropriate consideration of alcohol as a mitigating factor.

Orders