R v B; ex parte A-G

[2000] QCA 110

SUPREME COURT OF QUEENSLAND

CITATION:

R v B; ex parte A-G [2000] QCA 110

PARTIES:

R
v
B
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 379 of 1999
DC No 1 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court

DELIVERED ON:

4 April 2000

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2000

JUDGES:

McPherson JA, Moynihan SJA, Atkinson J
Joint reasons for judgment of Moynihan SJA and Atkinson J; separate reasons of McPherson JA, concurring as to the orders made

ORDER:

Appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – ATTORNEY-GENERAL’S APPEAL – appeal by Attorney-General against sentence on ground that manifestly inadequate – respondent convicted of torture of his 17 year old daughter and sentenced to 7 years imprisonment and declared a serious violent offender – Court’s desire not to interfere with sentencing judge’s discretion – whether the exercise of the sentencing discretion is an integrated process rather than a series of discrete steps.

Corrective Services Act 1988 (Qld), s 166(1)
Criminal Code (Qld), s 320A
Penalties and Sentences Act 1992 (Qld), s 13, s 156A(1), s 157(2), s 161A(a), s 161B,

R v Black [1948] QWN 23, considered
R v Bojovic [1999] QCA 206; CA No 4 of 1999, 8 June 1999, considered and distinguished
R v Booth [1999] QCA 100; CA No 338 of 1998, 30 March 1999, considered
R v Crossley [1999] QCA 223; CA No 477 of 1998, 18 June 1999, considered
R v Geddes; exparte A-G [1999] QCA 84; CA No 486 of 1998, 19 March 1999, considered
R v Melano; exparte A-G [1995] 2 Qd R 186, considered
R v Robinson and Stokes [1999] QCA 181; CA No 390 and No 391of 1998, 28 May 1999, considered

COUNSEL:

Mr D Bullock for the appellant
Mr B Devereaux for the respondent

SOLICITORS:

Director of Public Prosecutions (Qld) for the appellant
Legal Aid Queensland for the respondent

1. McPHERSON JA:  I have read and agree with the joint reasons given by Moynihan SJA and Atkinson J for dismissing this appeal.  I do, however, wish to comment on one aspect of the judgment.

1. Their Honours refer to the decision in R v Bojovic [1999] QCA 206 as showing that the exercise of the sentencing discretion is "an integrated process rather than a series of discrete steps". That is the effect of that decision in relation to sentencing in a matter in which a discretion arose under s 161B(3) of the Penalties and Sentences Act 1992 to make a declaration as to a serious violent offence. On that point, I took a different view of the relevant provisions in R v Collins (CA 238/ 1998; Sept 18, 1998); but I accept, as I must, that the decision in R v Bojovic decides that, to that extent at least, my view in Collins was wrong.

1. This means or implies, as Moynihan SJA and Atkinson J say in their reasons, that, in…