R v B

[2004] QCA 182

SUPREME COURT OF QUEENSLAND

CITATION:

R v B [2004] QCA 182

PARTIES:

R
v
B
(applicant)

FILE NO/S:

CA No 49 of 2004

DC No 71 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

28 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

17 May 2004

JUDGES:

McMurdo P and Chesterman and Atkinson JJ

Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDERS:

1.   Appeal against conviction struck out

2.   Application for leave to appeal against sentence granted

3.   Appeal against sentence allowed only to the extent of declaring the period in custody of 238 days, from 29 May 2003 to 21 January 2004 inclusive, to be imprisonment already spent under the sentence

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – WHEN GRANTED – PARTICULAR OFFENCES – SEXUAL OFFENCES – where applicant convicted on a retrial after successful appeal against conviction – where acquitted on one count at retrial after successful appeal against conviction – where sentence imposed was within appropriate range – whether appropriate reduction made for acquittal to reflect overall criminality – where declaration regarding pre-sentence custody should have been made – where indictment alleges period during which offences occurred – whether offences occurred whilst applicant was on parole

Corrective Services Act 2000 (Qld), s 135(2)(e)
Penalties and Sentences Act 1992 (Qld), s 161, Part 9A

R v A [1997] QCA 237; CA No 158 of 1997, 8 August 1997, considered
R v Bielefeld [2002] QCA 369; CA No 159 of 2002, 19 September 2002, considered
R v C [1992] QCA 13; CA No 262 of 1991, 3 March 1992, considered
R v Gilmore (1979) 1 A Crim R 416, cited
R v Inkerman [1997] QCA 316; CA No. 294 of 1997, 29 August 1997, cited
R v M [1999] QCA 344; CA No 219 of 1999, 20 August 1999, considered

R v Petersen [1999] 2 Qd R 85, cited

COUNSEL:

The applicant appeared on his own behalf

M J Copley for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO P:  I agree with the reasons for judgment of Atkinson J and the orders she proposes.

1. CHESTERMAN J:  I agree with the reasons for judgment given by Atkinson J and with the orders proposed.

1. ATKINSON J:  The applicant was convicted on 21 January 2001 after a two day trial on two counts of unlawful sodomy (counts 1 and 3); one count of indecent treatment of a child under the age of 16 with a circumstance of aggravation (count 2); and one count of rape (count 4).  He was acquitted on one count of rape (count 6).  This was a retrial after a successful appeal against conviction. 

1. He was sentenced by…