R v BBK (No 2) - [2014] QCA 71

SUPREME COURT OF QUEENSLAND

CITATION:

R v BBK (No 2) [2014] QCA 71

PARTIES:

R
v
BBK
(applicant)

FILE NO/S:

CA No 203 of 2013
SC No 922 of 2007
DC No 1202 of 2007
DC No 2465 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

11 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

7 April 2014

JUDGES:

Gotterson JA and Boddice and Thomas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – OTHER MATTERS – where the applicant was convicted and sentenced to a term of imprisonment of six years on a count of maintaining a sexual relationship with a child under sixteen years of age – where the applicant was convicted and sentenced for a number of other counts charged by separate indictment to be served upon completion of the sentence on the maintaining count – where the applicant applied for leave to appeal his sentence and was refused leave by this Court in 2008 – where the applicant filed an application in the District Court for a re-opening of the sentence proceeding – where the application was refused – where the applicant sought leave to appeal against the refusal of his District Court application under s 118 of the District Court of Queensland Act 1967 (Qld) – whether a refusal to re-open a sentence is beyond the scope of s 118 – whether the application for leave to appeal against the refusal of his District Court application should be allowed

District Court of Queensland Act 1967 (Qld), s 118
Penalties and Sentences Act 1992 (Qld), s 188(1)(c)

R v BBK[2008] QCA 2, cited
R v Christensen[2007] QCA 56, considered
R v Johnston [2008] QCA 291, considered
R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, followed
R v Upson (No 2) [2013] QCA 149, distinguished

COUNSEL:

The applicant appeared on his own behalf
P J McCarthy for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

GOTTERSON JA: In August and September 2007 at the District Court at Brisbane, the applicant, BBK, pleaded guilty to an array of offences of which he had been charged by indictment and summarily. He was convicted and sentenced on 2 October 2007 to a term of imprisonment of six years on a count of maintaining a sexual relationship with a child under sixteen years of age and also in respect of a number of counts charged by separate indictment, to concurrent terms of imprisonment of 18 months to be served upon completion of the sentence on the maintaining count.

The applicant applied to this Court for leave to appeal against sentence. The application was heard on 31 January 2008. It was…

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 (No 2)

Details

AGLC: R v BBK (No 2) [2014] QCA 71
Case: [2014] QCA 71
Decision Date: 11 April 2014

CaseChat Overview and Summary

The case of R v BBK (No 2) involved an applicant who had been convicted and sentenced to a six-year term of imprisonment for maintaining a sexual relationship with a child under sixteen years of age. The applicant was also convicted and sentenced for additional counts charged by a separate indictment, with these sentences to be served upon completion of the maintaining count sentence. The applicant had previously applied for leave to appeal his sentence in 2008, which was refused by the Court. Subsequently, the applicant filed an application in the District Court for a re-opening of the sentencing proceedings, which was also refused. The applicant then sought leave to appeal against the refusal of his District Court application under section 118 of the District Court of Queensland Act 1967 (Qld).

The central legal issues before the court were whether a refusal to re-open a sentence fell beyond the scope of section 118, and whether the application for leave to appeal against the refusal of the District Court application should be allowed. The court had to consider the scope of appellate jurisdiction under section 118 and the circumstances under which a refusal to re-open a sentence might be reviewed. The court needed to balance the applicant's right to appeal with the principles of finality in sentencing and the administrative burden of reopening proceedings.

In evaluating the application, the court found that the refusal to re-open the sentence proceeding was not within the scope of section 118. The court reasoned that section 118 was intended to provide a limited avenue for appeal in specific circumstances, and a refusal to re-open a sentence did not constitute a decision that could be reviewed under this provision. The court emphasised the importance of maintaining the finality of sentencing decisions and the potential for reopening proceedings to undermine this principle. As a result, the application for leave to appeal against the refusal of the District Court application was refused.

The court's decision was clear and decisive in dismissing the application for leave to appeal. The court did not find grounds to expand the scope of section 118 to include the refusal to re-open a sentence proceeding. The final order of the court was that the application for leave to appeal was refused.

Orders

Orders of the court

Application for leave to appeal 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 BBK (No 2) [2014] QCA 71
PARTIES:	R v BBK (applicant)
FILE NO/S:	CA No 203 of 2013 SC No 922 of 2007 DC No 1202 of 2007 DC No 2465 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	11 April 2014
DELIVERED AT:	Brisbane
HEARING DATE:	7 April 2014
JUDGES:	Gotterson JA and Boddice and Thomas JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – OTHER MATTERS – where the applicant was convicted and sentenced to a term of imprisonment of six years on a count of maintaining a sexual relationship with a child under sixteen years of age – where the applicant was convicted and sentenced for a number of other counts charged by separate indictment to be served upon completion of the sentence on the maintaining count – where the applicant applied for leave to appeal his sentence and was refused leave by this Court in 2008 – where the applicant filed an application in the District Court for a re-opening of the sentence proceeding – where the application was refused – where the applicant sought leave to appeal against the refusal of his District Court application under s 118 of the District Court of Queensland Act 1967 (Qld) – whether a refusal to re-open a sentence is beyond the scope of s 118 – whether the application for leave to appeal against the refusal of his District Court application should be allowed District Court of Queensland Act 1967 (Qld), s 118 Penalties and Sentences Act 1992 (Qld), s 188(1)(c) R v BBK[2008] QCA 2, cited R v Christensen[2007] QCA 56, considered R v Johnston [2008] QCA 291, considered R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, followed R v Upson (No 2) [2013] QCA 149, distinguished
COUNSEL:	The applicant appeared on his own behalf P J McCarthy for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent