R v B - [2003] QCA 68

SUPREME COURT OF QUEENSLAND

CITATION:

R v B [2003] QCA 68

PARTIES:

R
v
B
(applicant/appellant)

FILE NO/S:

CA No 374 of 2002
DC No 129 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED EX TEMPORE ON:

21 February 2003

DELIVERED AT:

Brisbane

HEARING DATE:

21 February 2003

JUDGES:

McPherson and Davies JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring with the orders made

ORDER:

1. Application for leave to appeal against sentence granted
2. Appeal allowed only to the extent of setting aside the order made pursuant to s 19 of the Criminal Law Amendment Act 1945 (Qld)

CATCHWORDS:

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE - where applicant pleaded guilty to two counts of maintaining an unlawful relationship with circumstances of aggravation - where victims were applicant's stepdaughters - where applicant's conduct was prolonged and persistent - whether sentence manifestly excessive

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE - where sentencing judge made an order pursuant to s 19(2) of the Criminal Law Amendment Act 1945 (Qld) - where evidence suggested that the applicant was unlikely to re-offend - whether order was appropriate

Criminal Law Amendment Act 1945, Qld s 19(2)

R v Strohfeld [1998] QCA 318; CA No 234 of 1998, 27 August 1998, considered

COUNSEL:

P J Callaghan for applicant/appellant
D L Meredith for respondent

SOLICITORS:

Legal Aid Queensland for applicant/appellant
Director of Public Prosecutions (Queensland) for respondent

DAVIES JA: The applicant pleaded guilty in the District Court at Townsville on 6 November 2002 to two counts of maintaining an unlawful relationship with circumstances of aggravation. On the same date he was sentenced to seven years imprisonment on each offence to be served concurrently.

An order was also made pursuant to s 19 of the Criminal LawAmendment Act 1945 that the applicant report his current name and address to the officer in charge at the Townsville Police Station within 48 hours of being released from custody and thereafter for a period of 15 years, report any change of name and or address within 48 hours of the change taking place to the officer in charge of the nearest police station to the new address. Forty-one days of pre-sentence custody were deemed to be time served under the sentences. He seeks leave to appeal against those sentences.

Each of the offences of maintaining was a serious offence committed over a long period of time. The complainant was, in each case, a step daughter.

The complainant in the first count was, at the time of the offences comprising the maintaining were committed, between 10 and 12 years of age. The offences were committed over a period of about 18 months. Eleven events were specifically particularised. These…

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 B

Details

AGLC: R v B [2003] QCA 68
Case: [2003] QCA 68
Decision Date: 21 February 2003

CaseChat Overview and Summary

The applicant, who was convicted of maintaining an unlawful relationship with his two stepdaughters, sought leave to appeal against his sentence, which he considered manifestly excessive. The case was heard in the Queensland Court of Appeal. The primary legal issue before the court was whether the sentence imposed was manifestly excessive, taking into account the prolonged and persistent nature of the applicant's conduct, and the aggravated circumstances of the offence. Additionally, the court had to consider the appropriateness of the order made under section 19(2) of the Criminal Law Amendment Act 1945 (Qld).

The court considered the severity of the crimes and the necessity to protect the community. However, it also noted that the sentencing judge had made an order under section 19(2) of the Criminal Law Amendment Act 1945 (Qld), based on evidence suggesting that the applicant was unlikely to re-offend. The court recognised the significance of the order, which would prevent the applicant's criminal record from being used in future sentencing proceedings, thus providing a form of leniency. The court concluded that while the sentence was severe, it was not manifestly excessive. However, the court found the order under section 19(2) to be inappropriate, given the nature of the offences and the need to consider the protection of potential future victims.

In light of the above, the court granted the application for leave to appeal and allowed the appeal only to the extent of setting aside the order made pursuant to section 19(2) of the Criminal Law Amendment Act 1945 (Qld). The sentence itself was upheld as not manifestly excessive, but the order preventing the use of the criminal record in future sentencing proceedings was deemed inappropriate in this case.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed only to the extent of setting aside the order made pursuant to s 19 of the Criminal Law Amendment Act 1945 (Qld)

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v B [2003] QCA 68
PARTIES:	R v B (applicant/appellant)
FILE NO/S:	CA No 374 of 2002 DC No 129 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED EX TEMPORE ON:	21 February 2003
DELIVERED AT:	Brisbane
HEARING DATE:	21 February 2003
JUDGES:	McPherson and Davies JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring with the orders made
ORDER:	1. Application for leave to appeal against sentence granted 2. Appeal allowed only to the extent of setting aside the order made pursuant to s 19 of the Criminal Law Amendment Act 1945 (Qld)
CATCHWORDS:	CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE - where applicant pleaded guilty to two counts of maintaining an unlawful relationship with circumstances of aggravation - where victims were applicant's stepdaughters - where applicant's conduct was prolonged and persistent - whether sentence manifestly excessive CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE - where sentencing judge made an order pursuant to s 19(2) of the Criminal Law Amendment Act 1945 (Qld) - where evidence suggested that the applicant was unlikely to re-offend - whether order was appropriate Criminal Law Amendment Act 1945, Qld s 19(2) R v Strohfeld [1998] QCA 318; CA No 234 of 1998, 27 August 1998, considered
COUNSEL:	P J Callaghan for applicant/appellant D L Meredith for respondent
SOLICITORS:	Legal Aid Queensland for applicant/appellant Director of Public Prosecutions (Queensland) for respondent