R v BBE - [2006] QCA 532

SUPREME COURT OF QUEENSLAND

CITATION:

R v BBE [2006] QCA 532

PARTIES:

R
v
BBE

(applicant/appellant)

FILE NO/S:

CA No 292 of 2006
DC No 1299 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

8 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

8 December 2004

JUDGES:

McMurdo P, Helman and Philippides JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal against sentence
   granted
2. Appeal allowed and sentences imposed at first instance
    set aside
3. Instead, on counts 1 to 3, order that applicant be
    sentenced on each count to three years imprisonment
    suspended after six months with an operational period
    of five years
4. On count 4, order that applicant serve six months
    imprisonment and three years probation on the usual
    terms and conditions in the Penalties and Sentences Act
    1992 (Qld) with the additional special condition that the
    applicant receive medical, psychiatric and
    psychological treatment with particular emphasis on
    his sexual problems and his sex offending
5. Applicant has consented to probation on these terms
6. The Department of Corrective Services is to receive a
    copy of Mr Hatzipetrou's report (Exhibit 2) and Dr
    Rosevear's report (Exhibit 3)

7. Sentences will commence from original sentencing date

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where applicant pleaded guilty to two counts of rape involving digital penetration, one count of rape involving penetration with the tongue and one count of indecent dealing with a child under 12 – where complainant child was applicant's five year old niece – where applicant has no prior criminal convictions and is intellectually impaired – where offences were only discovered after applicant admitted to them to his sister – where applicant was sentenced to four years imprisonment on each count of rape and two years concurrent imprisonment on the indecent dealing – whether the sentence was manifestly excessive in all the circumstances

Penalties and Sentences Act 1992 (Qld), s 93

R v SAH [2004] QCA 329; CA No 184 of 2004, 10 September 2004, considered

COUNSEL:

R A East for applicant
M R Byrne for respondent

SOLICITORS:

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

THE PRESIDENT: The applicant pleaded guilty on 9 October 2006 in the District Court at Brisbane to two counts of rape involving digital penetration, one count of rape involving penetration with the tongue, and one count of indecent dealing with a circumstance of aggravation with the complainant a child under 12. He was sentenced to four years' imprisonment in respect of each count of rape and two years' concurrent imprisonment on the count of indecent dealing. He was given a parole eligibility date of…

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 BBE

Details

AGLC: R v BBE [2006] QCA 532
Case: [2006] QCA 532
Decision Date: 8 December 2006

CaseChat Overview and Summary

The case of R v BBE involved an appeal against sentence by the convicted person, who had pleaded guilty to multiple sexual offences involving his five-year-old niece. The appellant had no prior criminal history and was identified as intellectually impaired. The appellant was sentenced to four years imprisonment for each count of rape and two years concurrent imprisonment for indecent dealing with a child under 12. The appeal was centred on whether the sentence imposed was manifestly excessive considering all the circumstances.

The legal issues before the court were whether the sentence was manifestly excessive and whether the appeal against the sentence should be granted. The court needed to consider the nature and severity of the crimes, the appellant's personal circumstances, and the principles of sentencing. The court also had to weigh the need for deterrence and denunciation against the appellant's personal circumstances, including his intellectual impairment and lack of prior criminal history.

In determining the appeal, the court acknowledged the gravity of the crimes but also considered the appellant's personal circumstances and the fact that the offences were only discovered after the appellant confessed to his sister. The court found that the original sentences were manifestly excessive. The court set aside the original sentences and imposed a new sentence that reflected a balance between the need for deterrence and the appellant's personal circumstances. The court ordered a suspended sentence for three of the counts and a combination of imprisonment and probation for the remaining count, with special conditions for the probation. The court also ordered that the Department of Corrective Services receive reports from experts on the appellant's condition and treatment needs.

Orders

Orders of the court

1. Application for leave to appeal against sentence

granted

2. Appeal allowed and sentences imposed at first instance

set aside

3. Instead, on counts 1 to 3, order that applicant be

sentenced on each count to three years imprisonment

suspended after six months with an operational period

of five years

4. On count 4, order that applicant serve six months

imprisonment and three years probation on the usual

terms and conditions in the Penalties and Sentences Act

1992 (Qld) with the additional special condition that the

applicant receive medical, psychiatric and

psychological treatment with particular emphasis on

his sexual problems and his sex offending

5. Applicant has consented to probation on these terms

6. The Department of Corrective Services is to receive a

copy of Mr Hatzipetrou's report (Exhibit 2) and Dr

Rosevear's report (Exhibit 3)

7. Sentences will commence from original sentencing date

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 BBE [2006] QCA 532
PARTIES:	R v BBE (applicant/appellant)
FILE NO/S:	CA No 292 of 2006 DC No 1299 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	8 December 2006
DELIVERED AT:	Brisbane
HEARING DATE:	8 December 2004
JUDGES:	McMurdo P, Helman and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal against sentence granted 2. Appeal allowed and sentences imposed at first instance set aside 3. Instead, on counts 1 to 3, order that applicant be sentenced on each count to three years imprisonment suspended after six months with an operational period of five years 4. On count 4, order that applicant serve six months imprisonment and three years probation on the usual terms and conditions in the Penalties and Sentences Act 1992 (Qld) with the additional special condition that the applicant receive medical, psychiatric and psychological treatment with particular emphasis on his sexual problems and his sex offending 5. Applicant has consented to probation on these terms 6. The Department of Corrective Services is to receive a copy of Mr Hatzipetrou's report (Exhibit 2) and Dr Rosevear's report (Exhibit 3) 7. Sentences will commence from original sentencing date
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where applicant pleaded guilty to two counts of rape involving digital penetration, one count of rape involving penetration with the tongue and one count of indecent dealing with a child under 12 – where complainant child was applicant's five year old niece – where applicant has no prior criminal convictions and is intellectually impaired – where offences were only discovered after applicant admitted to them to his sister – where applicant was sentenced to four years imprisonment on each count of rape and two years concurrent imprisonment on the indecent dealing – whether the sentence was manifestly excessive in all the circumstances Penalties and Sentences Act 1992 (Qld), s 93 R v SAH [2004] QCA 329; CA No 184 of 2004, 10 September 2004, considered
COUNSEL:	R A East for applicant M R Byrne for respondent
SOLICITORS:	Legal Aid Queensland for applicant Director of Public Prosecutions (Queensland) for respondent