Proctor : November 2018
36 PROCTOR | November 2018 set aside. The statement of claim be struck out. The respondent have liberty to replead within 21 days of these orders. Costs of application and appeal be reserved to the trial judge. Criminal appeals R v DBQ  QCA 210, 11 September 2018 Sentence Application – where in Victoria the applicant had sexual intercourse with the complainant when she was 13 years old and he was 33 years old – where shortly afterwards the applicant and complainant moved to Queensland – where the applicant maintained a relationship with her until after she turned 16 – where during the period of maintaining the applicant had regular sexual interactions with the complainant – where the applicant was prosecuted in Victoria for sexual penetration of a child – where the applicant was sentenced to two years’ imprisonment, wholly suspended for a period of three years and the applicant was declared a registered sex offender for a period of 15 years – where the applicant was then extradited to Queensland and convicted on his plea of one count of maintaining a sexual relationship with a child under 16, with a circumstance of aggravation that he had unlawful carnal knowledge of a child under 16 – where the applicant was sentenced to seven years’ imprisonment with a parole eligibility date fixed after serving two years and three months – where the sentencing judge observed that the sentence in Victoria was a factor to be taken into account, however noted that if the offending in Victoria had been included it would have extended the period of offending – where despite the apparent acceptance by the sentencing judge that totality considerations were relevant, the sentence imposed was not in fact appropriately moderated to reflect that matter – where the term of seven years’ imprisonment thus failed to have proper regard to the totality of the sentences imposed for the Victorian offending which continued to require compliance with reporting conditions – where a consideration of the authorities also supports the contention that when totality considerations were taken into account, a combined head sentence of nine years was manifestly excessive had the applicant been dealt with for all the offending including the Victorian offending – where the applicant was not being dealt with for offences against more than one child victim – where having regard to other authorities put forward at sentence and before this court, as a yardstick, a combined head sentence of nine years would not have fallen within the sentencing discretion had the applicant been dealt with on the one occasion for all the offending including the Victorian offending. Application granted. Appeal allowed. The sentence is varied to the extent that the head sentence of seven years’ imprisonment is set aside and, in lieu thereof, a head sentence of six years is imposed. R v KAR & Ors  QCA 211, 11 September 2018 Applications for Extension (Conviction); Sentence Application; Applications for Extension (Conviction & Sentence); Applications for Extension (Sentence) – where each of the seven applicants was convicted on his plea to one count of riot pursuant to s61 of the Criminal Code (Qld) with two circumstances of aggravation, causing grievous bodily harm and property damage – where the applicants were part of a group of more than 12 assembled persons involved in a riot at a youth detention centre – where during the course of the riot the group damaged air-conditioning units, used metal poles as weapons and retrieved other objects which were used to attack staff members – where various staff members suffered injuries – where one staff member was struck in the head with a rock which resulted in the loss of sight in an eye, which constituted the grievous bodily harm – where each applicant seeks an extension of time to lodge an appeal against conviction for the circumstance of aggravation of causing grievous bodily harm – whether the applicants could be convicted of the circumstance of aggravation as a secondary party by virtue of either s7 or s8 of the Criminal Code (Qld) – whether a person can only be convicted of a circumstance of aggravation where the person did the act constituting the relevant circumstance of aggravation – whether the term “offence” in s7(1)(c) and s8 of the code contemplates only a non-aggravated form of the offence or whether “the offence” includes a circumstance of aggravation where that circumstance of aggravation had been proven to arise – whether the decision in R v Barlow (1997) 188 CLR 1 precludes an interpretation of “offence” in s7(1) (c) and s8 of the Code to include a circumstance of aggravation – whether the dicta in R v Phillips and Lawrence  Qd R 237 as to the application of s7(1)(c) and s8 to a circumstance of aggravation are reconcilable with Barlow – where, as stated in Barlow, the definition of “offence” in s2 of the Code, makes it clear that the term is not used to describe the concatenation of elements which constitute a particular offence or facts that create a liability to punishment by the actual perpetrator – where, rather, it denotes the element of conduct which, with other facts of the case, renders the person engaging in it liable to punishment – where as explained in Barlow, s7(1)(a) confirms that “offence” is used to denote the element of “conduct” in that sense, and not the constituent elements that constitute a particular offence – where it follows that there is nothing in the definition of “offence” in s2, as interpreted in Barlow, which precludes s8 from operating to extend liability to encompass the relevant act or omission together with any circumstance of aggravation found to have been done by the principal offender, where the resulting aggravated offence was a probable consequence of the common unlawful purpose and done in prosecution of it – where likewise, there is no basis to confine the concept of “offence” in s7(1)(c) to only the simpliciter offence where, for example the assistance is given to a principal to commit an aggravated form of the offence – where in the circumstances of the present case, there is no basis to conclude that for the context of s8 the “unlawful purpose” cannot be the offence of riot simpliciter and that the “offence” (to which liability is extended to the co accused) cannot be that of riot with a circumstance of aggravation of causing grievous bodily harm – where nor in the circumstances of the present case, is it to the point to consider whether the circumstance of aggravation relevant to the principal’s conduct, in respect of which assistance is given for the purpose of s7(1)(c), can be characterised as an “element of the offence” – where the relevant point of focus is whether the assistance is rendered in relation to the conduct of the principal offender (which includes that the fact that the conduct is accompanied by an act which amounts to a circumstance of aggravation of causing grievous bodily harm) which rendered the principal liable to punishment under s7(1)(a) of the code – where for the present purposes, it is important to note that the relevant “offence” for the purposes of s7(1)(a) and s8 is the conduct of the unnamed principal which, with other facts of the case (as admitted on sentence), rendered that person liable to punishment for the offence of riot with the circumstance of aggravation of causing grievous bodily harm – where that conduct comprised being present as one of at least 12 assembled persons using or threatening to use unlawful violence as prescribed in s61(1) (a) and in the circumstance prescribed in s61(1) (b) with the result prescribed in s61(a) – where the applicants pleaded guilty to riot with two circumstances of aggravation and were each sentenced to 21⁄2 years’ detention, to be released after serving 50%, and convictions were recorded – where two of the seven applicants were also given concurrent sentences for other offences – where each applicant seeks leave to appeal against sentence – whether the sentence imposed on each of the applicants was manifestly excessive in all of the circumstances – whether the sentencing judge failed to give consideration to parity for some of the applicants who argued they had a lesser role in the offending – whether the sentencing judge erred in declaring time in custody – where the applicants were all sentenced under the Youth Justice Act 1992 (Qld) (the Act) – where it is a circumstance of particular seriousness here that the riot was directed against staff of a youth detention centre, that is, the very people responsible for maintaining order and safety in the centre – where moreover, quite apart from whether staff are targeted, the mere act of participation in a riot by persons who are serving custodial sentences or are remanded in custody represents such a challenge to the state’s lawful power of behavioural control over them as to inevitably require starkly deterrent punishment – where none of the cases referred to suggest the sentences imposed upon the applicants here were manifestly excessive – where substantial sentences were called for – where the applicants were all sentenced to 21⁄2 years’ detention, except for Master MCV, who received two years’ detention – where they are clearly substantial sentences for juvenile offenders – where however, they are not so significant as to exceed an appropriate range of penalty for such serious offending by juveniles in custody. In relation to the applications concerning the convictions in each file: Grant leave to extend time in which to appeal against conviction. Dismiss the appeals against conviction. In relation to the applications for leave to appeal against sentence should in each application be: Application for leave to appeal sentence refused.