R v Atkinson - [2022] QCA 252

SUPREME COURT OF QUEENSLAND

CITATION:

R v Atkinson [2022] QCA 252

PARTIES:

R
v
ATKINSON, Richard Charles
(applicant)

FILE NO/S:

CA No 165 of 2022
DC No 1962 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 28 July 2022 (Kent KC DCJ)

DELIVERED ON:

9 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

20 September 2022

JUDGES:

Dalton JA and Jackson and Crow JJ

ORDER:

Application dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to four counts of indecent treatment of a child under 16 years – where the applicant was sentenced to a head sentence of 15 months imprisonment suspended after serving three months in custody with an operational period of two years – where the complainant was 13 years old and the applicant was 70 years old at the time of the offending – where the complainant was wearing his school uniform during the offending – where there was an agreed factual compromise that the applicant had an honest, but unreasonable, belief that the complainant was at least 16 years old – where s 9(4)(c) of the Penalties and Sentences Act 1992 (Qld) (PSA) requires a court to sentence an offender for any sexual offence in relation to a child under 16 years to an actual term of imprisonment unless there are exceptional circumstances – where the applicant submits that the primary judge failed to place sufficient weight upon the applicant’s honest, but unreasonable, belief that the complainant was at least 16 years old – whether the primary judge erred in finding that there were no exceptional circumstances within the meaning of s 9(4)(c) of the PSA

Criminal Code (Qld), s 210, s 229
Penalties and Sentences Act 1992 (Qld), s 9(4)

Corby v R [2010] NSWCCA 146, considered
Fisher v R; R v Fisher [2021] NSWCCA 91, cited
Glade v The Queen [2020] SASCFC 83, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17, cited
R v BCX (2015) 255 A Crim R 456; [2015] QCA 188, applied

COUNSEL:

A J Kimmins and M L Longhurst for the applicant
C W Wallis for the respondent

SOLICITORS:

Bosscher Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

DALTON JA: The applicant seeks leave to appeal against sentence so that he can advance an argument on appeal that the primary judge erred in finding that there were no exceptional circumstances within the meaning of s 9(4)(c) of the Penalties and Sentences Act 1992 (Qld) (PSA). The relevant provisions of that Act, and the Criminal Code are set out in the judgment of Crow J.
The primary judge had before him an agreed statement of facts. That showed that at the time of the offences the…

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 Atkinson

Details

AGLC: R v Atkinson [2022] QCA 252
Case: [2022] QCA 252
Decision Date: 9 December 2022

CaseChat Overview and Summary

In the case of R v Atkinson, the applicant appealed against his sentence, arguing that the primary judge did not adequately consider his honest but unreasonable belief that the complainant was at least 16 years old when determining whether exceptional circumstances existed for avoiding an actual term of imprisonment. The applicant had pleaded guilty to four counts of indecent treatment of a child under 16 years, and was sentenced to 15 months imprisonment, suspended after serving three months, with an operational period of two years. The complainant was 13 years old at the time of the offence, while the applicant was 70 years old. The applicant claimed that he honestly believed the complainant was over the age of 16, which was accepted by the court as an agreed factual compromise.

The legal issue before the court was whether the primary judge erred in finding that there were no exceptional circumstances for avoiding an actual term of imprisonment, as required by s 9(4)(c) of the Penalties and Sentences Act 1992 (Qld). The court needed to determine whether the primary judge gave sufficient weight to the applicant's honest but unreasonable belief that the complainant was at least 16 years old. The applicant submitted that the primary judge did not properly consider this factor, and that it should have influenced the sentencing decision.

The court found that the primary judge did not err in their assessment of exceptional circumstances. The court considered the applicant's belief, but held that it did not constitute an exceptional circumstance under s 9(4)(c) of the PSA. The court found that the applicant's age, his position of authority relative to the complainant, and the nature of the offending were factors that weighed against finding exceptional circumstances. The court concluded that the sentence imposed was appropriate and dismissed the application for appeal.

Orders

Orders of the court

Application dismissed.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Atkinson [2022] QCA 252
PARTIES:	R v ATKINSON, Richard Charles (applicant)
FILE NO/S:	CA No 165 of 2022 DC No 1962 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 28 July 2022 (Kent KC DCJ)
DELIVERED ON:	9 December 2022
DELIVERED AT:	Brisbane
HEARING DATE:	20 September 2022
JUDGES:	Dalton JA and Jackson and Crow JJ
ORDER:	Application dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to four counts of indecent treatment of a child under 16 years – where the applicant was sentenced to a head sentence of 15 months imprisonment suspended after serving three months in custody with an operational period of two years – where the complainant was 13 years old and the applicant was 70 years old at the time of the offending – where the complainant was wearing his school uniform during the offending – where there was an agreed factual compromise that the applicant had an honest, but unreasonable, belief that the complainant was at least 16 years old – where s 9(4)(c) of the Penalties and Sentences Act 1992 (Qld) (PSA) requires a court to sentence an offender for any sexual offence in relation to a child under 16 years to an actual term of imprisonment unless there are exceptional circumstances – where the applicant submits that the primary judge failed to place sufficient weight upon the applicant’s honest, but unreasonable, belief that the complainant was at least 16 years old – whether the primary judge erred in finding that there were no exceptional circumstances within the meaning of s 9(4)(c) of the PSA Criminal Code (Qld), s 210, s 229 Penalties and Sentences Act 1992 (Qld), s 9(4) Corby v R [2010] NSWCCA 146, considered Fisher v R; R v Fisher [2021] NSWCCA 91, cited Glade v The Queen [2020] SASCFC 83, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17, cited R v BCX (2015) 255 A Crim R 456; [2015] QCA 188, applied
COUNSEL:	A J Kimmins and M L Longhurst for the applicant C W Wallis for the respondent
SOLICITORS:	Bosscher Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent