R v BBJ - [2007] QCA 375

SUPREME COURT OF QUEENSLAND

CITATION:

R v BBJ [2007] QCA 375

PARTIES:

R
v
BBJ
(appellant/applicant)

FILE NO/S:

CA No 103 of 2007
CA No 159 of 2007
DC No 204 of 2006
DC No 14 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence
Sentence Application

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

2 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

22 October 2007

JUDGES:

Jerrard and Keane JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal against convictions dismissed
2. Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where the applicant/appellant was convicted of numerous charges relating to the physical abuse of children – where the applicant/appellant served time in pre-sentence custody – whether any pre-sentence custody should have been taken into account when sentencing the applicant/appellant

Penalties and Sentences Act 1992 (Qld), s 159A(1)

COUNSEL:

A J MacSporran SC for the applicant/appellant
M J Copley for the respondent

SOLICITORS:

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

[1] JERRARD JA: On 13 November 2006 Mr BBJ pleaded not guilty to two counts of having unlawfully assaulted CD and thereby done her bodily harm, and not guilty to two further counts of having, with intent to do CD grievous bodily harm, unlawfully done her grievous bodily harm. He pleaded guilty that day to one count of having caused CD suffering by failing to take all lawful steps to obtain adequate medical treatment for CD when he had the lawful care of CD, and when adequate medical treatment was not available to CD from her own resources. That last offence was described as a plea to a count of cruelty, for which provision is made in s 364 of the Criminal Code 1899 (Qld).

[2] After a trial, Mr BBJ was convicted by a jury of one count of assault occasioning bodily harm to CD committed between 1 June 2005 and 26 September 2005, and constituted by his conduct in throwing CD against a wall of a house in a fit of anger, because she had wet her pants. The bodily harm consisted in her ribs being fractured. The period in which that offence occurred (between 1 June 2005 and 26 September 2005) was the period covered by the dates on the count of cruelty, to which he had earlier pleaded guilty. Mr BBJ was acquitted by the jury on a second count of assault occasioning bodily harm, allegedly committed between those same dates.

[3] The appeal record does not establish the facts which constituted that second count of assault occasioning bodily harm, and the jury at that trial were unable to agree on either of the two counts charging Mr BBJ…

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 BBJ

Details

AGLC: R v BBJ [2007] QCA 375
Case: [2007] QCA 375
Decision Date: 2 November 2007

CaseChat Overview and Summary

The case of R v BBJ involved an appeal against the sentence imposed on the appellant, BBJ, following a conviction for numerous charges related to the physical abuse of children. The appellant sought to have their sentence reduced on the basis that the time they had spent in pre-sentence custody should have been taken into account when the sentence was being determined. The matter was heard in the court of appeal. The central issue before the court was whether the appellant's pre-sentence custody should have been taken into account in the sentencing process. The court needed to determine whether the trial judge had erred in not considering this factor and whether the sentence imposed was appropriate in the circumstances.

The court of appeal found that the trial judge had not erred in not taking the pre-sentence custody into account when determining the sentence. The court held that the sentencing judge was not bound to take pre-sentence custody into account when determining the appropriate sentence, particularly where the offence involved serious physical abuse of children. The court further held that the sentence imposed was not manifestly excessive, and there was no basis for the court to interfere with the sentence. The appeal against the sentence was therefore dismissed, and the application for leave to appeal against the sentence was refused. This decision reinforces the principle that the time spent in pre-sentence custody is not a mandatory factor to be considered when determining the appropriate sentence, particularly in cases involving serious offences against children.

Orders

Orders of the court

1. Appeal against convictions dismissed

2. Application for leave to appeal against sentence refused

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 BBJ [2007] QCA 375
PARTIES:	R v BBJ (appellant/applicant)
FILE NO/S:	CA No 103 of 2007 CA No 159 of 2007 DC No 204 of 2006 DC No 14 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence Sentence Application
ORIGINATING COURT:	District Court at Mackay
DELIVERED ON:	2 November 2007
DELIVERED AT:	Brisbane
HEARING DATE:	22 October 2007
JUDGES:	Jerrard and Keane JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against convictions dismissed 2. Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where the applicant/appellant was convicted of numerous charges relating to the physical abuse of children – where the applicant/appellant served time in pre-sentence custody – whether any pre-sentence custody should have been taken into account when sentencing the applicant/appellant Penalties and Sentences Act 1992 (Qld), s 159A(1)
COUNSEL:	A J MacSporran SC for the applicant/appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent