R v BBM

Case [2008] QCA 162 20 June 2008

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SUPREME COURT OF QUEENSLAND

CITATION:

R v BBM [2008] QCA 162

PARTIES:

R
v
BBM
(applicant/appellant)

FILE NO/S:

CA No 240 of 2007
DC No 493 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

20 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

12 May 2008

JUDGES:

Muir and Fraser JJA and Mackenzie AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Grant the application, allow the appeal, and set aside the sentence imposed by the sentencing judge 1.

In lieu thereof impose the following sentences: 2.

In respect of the applicant’s conviction on count 1 of the indictment, impose a period of imprisonment of 10 years and declare that it is a “serious violent offence” a.

In respect of the applicant’s conviction on counts 2-9 of the indictment impose a period of imprisonment of 7 years for each count b.

All sentences are to be served concurrently 3.

Declare that the 442 days spent in presentence custody between 14 July 2005 and 29 September 2006 be taken to be imprisonment already served under the sentences4.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where the applicant was convicted on his plea of guilty of one count of maintaining an unlawful relationship of a sexual nature with his adopted daughter – where the offending occurred over an eight year period – where the complainant was disabled – where the offending extended to carnal knowledge of the complainant on three occasions – where the applicant had no prior criminal history – where the applicant was sentenced to 10 years imprisonment with a declaration that the offence was a serious violence offence – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where the applicant was convicted on his plea of guilty to eight counts of incest – where seven of the eight counts involved vaginal penetration – where the other count involved an act of sodomy – where the offending occurred over a period of some four years – where the offences were aggravated by the applicant having previously maintained an unlawful sexual relationship with the complainant while she was a child – where the applicant was sentenced to 10 years imprisonment on each count with a declaration that the offences were serious violent offences – whether in the circumstances the sentences were manifestly excessive

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE…

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 BBM

Details

AGLC: R v BBM [2008] QCA 162
Case: [2008] QCA 162
Decision Date: 20 June 2008

CaseChat Overview and Summary

The applicant, BBM, appealed against his sentence in the Court of Criminal Appeal. He was convicted on his plea of guilty of maintaining an unlawful relationship of a sexual nature with his adopted daughter, over an eight-year period, and eight counts of incest. The court was required to decide whether the sentences imposed were manifestly excessive.

The court found that the primary judge had erred in imposing a sentence of 10 years imprisonment on each count of incest and the charge of maintaining an unlawful sexual relationship, without adequately explaining the reasoning behind the sentences. The court found that the sentence for the charge of maintaining an unlawful sexual relationship should be 10 years, and the sentences for the incest convictions should be 7 years each, all sentences to be served concurrently. The court also found that the primary judge had erred in referring to vaginal and anal rape in her sentencing remarks, as the complainant was not charged with rape.

The Court of Criminal Appeal granted the application, allowed the appeal, and set aside the sentence imposed by the sentencing judge. In lieu thereof, the Court imposed the following sentences: a period of imprisonment of 10 years for the maintaining charge and 7 years for each of the incest convictions, all sentences to be served concurrently. The Court also declared that the 442 days spent in presentence custody should be taken to be imprisonment already served under the sentences.

Orders

Orders of the court

Grant the application, allow the appeal, and set aside the sentence imposed by the sentencing judge 1.

In lieu thereof impose the following sentences: 2.

In respect of the applicant’s conviction on count 1 of the indictment, impose a period of imprisonment of 10 years and declare that it is a “serious violent offence” a.

In respect of the applicant’s conviction on counts 2-9 of the indictment impose a period of imprisonment of 7 years for each count b.

All sentences are to be served concurrently 3.

Declare that the 442 days spent in presentence custody between 14 July 2005 and 29 September 2006 be taken to be imprisonment already served under the sentences4.

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

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Citations

R v BBM [2008] QCA 162

Most Recent Citation

R v MBG & MBH [2009] QCA 252

Cases Citing This Decision

R v Nac [2022] QCA 120
Citation 1 (Para 5)

…onsequence that he would be liable to serve 80 per cent of the sentence before eligibility for release on parole. [6] R v BAY [2005] QCA 427, R v BBM [2008] QCA 162, R v PAK [2010] QCA 187, R v BCA [2011] QCA 278 and R v RAZ; Ex parte Attorney-General (Qld) [2018] QCA 178.…
R v ABF; R v MDK [2021] QCA 240
Citation 2 (Para 23)

…relevant authorities that were then also relied on in sentencing the female appellant, including R v HBT (2018) 274 A Crim R 569 at [96] and R v BBM [2008] QCA 162 at [26] where reference was made to Jerrard JA’s judgment in R v SAG (2004) 147 A Crim R 301 at [18] that listed many decisions in this court in whic…
R v Davis [2021] QCA 163
Citation 3 (Para 16)

…mparable sentencing decisions. His sentence is not manifestly excessive. [1] R v Pham (2015) 256 CLR 550 at [28]. [2][2018] QCA 284. [3][2008] QCA 162.…
R v RBC [2020] QCA 99
Citation 4 (Para 2)

…the higher end of the established range”. In order to understand that, reference to some comments need be made about those authorities. [27][2008] QCA 162. [28][2006] QCA 55. [29][2005] QCA 53. [30] R v EK at [30].…
R v WBG [2018] QCA 284
Citation 5 (Para 9)

…BBM .[8] [4]RB, page 2. [5]Transcript of application, 1-3, lines 19 to 28. [6]Transcript of application, 1-4, line 26. [7][2013] QCA 278. [8][2008] QCA 162.…
R v HBT [2018] QCA 227
Citation 6 (Para 1)

…victim for a lengthy period, as here, were sentenced for periods between 10 and 15 years, which sentences were imposed or upheld on appeal.” [94][2008] QCA 162 at [26].…
R v MCT [2018] QCA 189
Citation 7 (Para 3)

…[209][2007] QCA 137. [210](2009) 24 VR 197; [2009] VSCA 146. [211][2017] VSCA 189. [212][2004] QCA 114. [213][2005] QCA 266. [214][2005] QCA 74. [215][2008] QCA 162. [216](2000) 111 A Crim R 302; [2000] QCA 42. [217](2014) 239 A Crim R 111; [2014] QCA 39. [218][2015] QCA 152.…
R v CBO [2016] QCA 24
Citation 8 (Para 8)

…after a trial of about 11 to 12 years, and the Court decided in CAM only that the sentence was not manifestly excessive. [19][2009] QCA 44. [20][2008] QCA 162. [21][2006] QCA 55. [22][2005] QCA 53.…
R v EK [2013] QCA 278
Citation 9 (Para 1)

…Counsel for the respondent placed particular reliance on R v BBM ,[16] R v HAA [17] and R v GQ .[18] [16][2008] QCA 162. [17][2006] QCA 55. [18][2005] QCA 53.…
R v MBG and mbH [2009] QCA 252
Citation 10 (Para 1)

…g much more serious factual circumstances, citing R v C; ex parte A-G (Qld) [2003] QCA 134; R v TR & FV; ex parte A-G (Qld) [2008] QCA 221; R v BBM [2008] QCA 162; R v HAP [2008] QCA 137; R v DAF [2004] QCA 368; R v BAX [2005] QCA 365; R v BAY [2005] QCA 427; R v BAO [2004] QCA 445; and R v R [2000] QCA 279. All…

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Cases Cited

R v BAY [2005] QCA 427
Citation 1 (Para 1)

…In R v BAY [2005] QCA 427 this Court allowed an application for leave to appeal against a sentence of 12 years imprisonment for an offence of maintaining an unlawful sexual relationship with a child under the age of 16 years and substituted a sentence of 10 years imprisonment on that count. A term of eight years…
R v Neumann; Ex parte Attorney-General (Qld) [2005] QCA 362
Citation 2 (Para 1)

…ality falling short of insanity might be a significant mitigating factor in sentencing: compare R v Neumann; ex parte A-G (Qld) [2007] 1 Qd R 53; [2005] QCA 362.…
R v SAG [2004] QCA 286
Citation 3 (Para 1)

…When discussing this Court’s decision in R v SAG [2004] QCA 286 (which concerned the offence of maintaining an unlawful sexual relationship) the trial judge referred to “matters which substantially increase the sentence” as including “if penile rape occurred during the course of that relationship, it did, both va…
R v Crofts [1998] QCA 60
Citation 4 (Para 1)

…imposed one sentence or nine sentences. It was necessary for separate sentences to be imposed for each offence: R v Crofts [1999] 1 Qd R 386 at 387; [1998] QCA 60.…
R v P [1997] QCA 453
Citation 5 (Para 1)

…ars for each of those offences is appropriate, in my view, and it is in line with Lee J's discussion in R v P [1998] 2 Qd R 191 at 199 – 200; [1997] QCA 453, of the appropriate range of sentences for comparable offences.…

Legislation Cited

No legislation cited in this judgment.

CITATION:	R v BBM [2008] QCA 162
PARTIES:	R v BBM (applicant/appellant)
FILE NO/S:	CA No 240 of 2007 DC No 493 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	20 June 2008
DELIVERED AT:	Brisbane
HEARING DATE:	12 May 2008
JUDGES:	Muir and Fraser JJA and Mackenzie AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Grant the application, allow the appeal, and set aside the sentence imposed by the sentencing judge 1. In lieu thereof impose the following sentences: 2. In respect of the applicant’s conviction on count 1 of the indictment, impose a period of imprisonment of 10 years and declare that it is a “serious violent offence” a. In respect of the applicant’s conviction on counts 2-9 of the indictment impose a period of imprisonment of 7 years for each count b. All sentences are to be served concurrently 3. Declare that the 442 days spent in presentence custody between 14 July 2005 and 29 September 2006 be taken to be imprisonment already served under the sentences4.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where the applicant was convicted on his plea of guilty of one count of maintaining an unlawful relationship of a sexual nature with his adopted daughter – where the offending occurred over an eight year period – where the complainant was disabled – where the offending extended to carnal knowledge of the complainant on three occasions – where the applicant had no prior criminal history – where the applicant was sentenced to 10 years imprisonment with a declaration that the offence was a serious violence offence – whether the sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where the applicant was convicted on his plea of guilty to eight counts of incest – where seven of the eight counts involved vaginal penetration – where the other count involved an act of sodomy – where the offending occurred over a period of some four years – where the offences were aggravated by the applicant having previously maintained an unlawful sexual relationship with the complainant while she was a child – where the applicant was sentenced to 10 years imprisonment on each count with a declaration that the offences were serious violent offences – whether in the circumstances the sentences were manifestly excessive CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE…