R v BBK - [2008] QCA 2

SUPREME COURT OF QUEENSLAND

CITATION:

R v BBK [2008] QCA 2

PARTIES:

R
v
BBK
(applicant)

FILE NO/S:

CA No 296 of 2007
DC No 922 of 2007
DC No 1202 of 2007
DC No 2465 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON

30 January 2008

DELIVERED AT:

Brisbane

HEARING DATE:

30 January 2008

JUDGES:

de Jersey CJ, Keane and Holmes JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where applicant plead guilty to offence of maintaining a sexual relationship with a child under 16 years of age - where applicant is a relative of the complainant – where applicant suffered from hepatitis C – where applicant sentenced to 6 years to be served cumulatively with sentences imposed for various property offences - whether sentence imposed was excessive – whether sentences should be served cumulatively or concurrently

COUNSEL:

B G Devereaux for the applicant
G Cash for the respondent

SOLICITORS:

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

THE CHIEF JUSTICE: I will ask Justice Keane to deliver the first judgment.

KEANE JA: On 31 August 2007 the applicant pleaded guilty to a number of offences, the most serious of which was maintaining a sexual relationship with a child under 16 years of age. He also pleaded guilty to six counts of unlawful use of a motor vehicle, five counts of stealing and three counts of arson. He also pleaded guilty to one count of receiving stolen property, two counts of dangerous operation of a motor vehicle and one count of burglary and stealing.

On 27 September 2007 he pleaded guilty to a further 23 summary offences transferred to the Court pursuant to section 651 of the Criminal Code Act 1899 (Qld).

On 2 October 2007 the applicant was sentenced to six years' imprisonment for the offence of maintaining and 18 months' imprisonment for the stealing, arson and other indictable offences. He was also sentenced to lesser terms for the various summary offences.

The 18 month terms were to be served concurrently with each other but cumulatively upon the six year sentence. A period of presentence custody of 801 days was declared to be time already served and a parole eligibility date was set at 2 January 2008. That date, has of course, already passed, but the effect of the sentence is that the applicant is now eligible for consideration for parole by the authorities.

The applicant sought leave to appeal on the stated ground that the sentences imposed were manifestly excessive. On the hearing of the appeal the applicant contended that a total sentence of six years' imprisonment should have been imposed. As will become…

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 BBK

Details

AGLC: R v BBK [2008] QCA 2
Case: [2008] QCA 2
Decision Date: 30 January 2008

CaseChat Overview and Summary

In the Supreme Court of Queensland, the matter of R v BBK was heard where BBK, the applicant, sought to appeal against his sentence. BBK had entered a guilty plea to maintaining a sexual relationship with a child under the age of 16 years, where he was a relative of the child. In addition to this offence, BBK was also convicted of various property offences. The applicant was sentenced to six years imprisonment, to be served cumulatively with the sentences for the property offences. BBK argued that the sentence was excessive and that the sentences should have been ordered to be served concurrently rather than cumulatively.

The court was required to determine whether the sentence imposed was excessive and whether the sentences should have been ordered to be served concurrently. The court considered the seriousness of the sexual offence, the applicant's health condition, his previous criminal record, and the need for deterrence and rehabilitation. The court also considered the sentences for the property offences and whether they should be served concurrently or cumulatively with the sentence for the sexual offence.

The court found that the sentence was not excessive and that the sentences should be served cumulatively. The court held that the sexual offence was of high seriousness due to the vulnerability of the victim and the applicant's position of trust and authority over the victim. The court also held that the applicant's previous criminal record and health condition did not warrant a reduction in the sentence. The court further held that the sentences for the property offences should be served cumulatively with the sentence for the sexual offence to reflect the seriousness of the applicant's criminal conduct.

The court refused the application for leave to appeal against sentence.

Orders

Orders of the court

Application for leave to appeal against sentence refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v BBK [2008] QCA 2
PARTIES:	R v BBK (applicant)
FILE NO/S:	CA No 296 of 2007 DC No 922 of 2007 DC No 1202 of 2007 DC No 2465 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON	30 January 2008
DELIVERED AT:	Brisbane
HEARING DATE:	30 January 2008
JUDGES:	de Jersey CJ, Keane and Holmes JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where applicant plead guilty to offence of maintaining a sexual relationship with a child under 16 years of age - where applicant is a relative of the complainant – where applicant suffered from hepatitis C – where applicant sentenced to 6 years to be served cumulatively with sentences imposed for various property offences - whether sentence imposed was excessive – whether sentences should be served cumulatively or concurrently
COUNSEL:	B G Devereaux for the applicant G Cash for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent