R v BBZ - [2011] QCA 62

SUPREME COURT OF QUEENSLAND

CITATION:

R v BBZ [2011] QCA 62

PARTIES:

R
v
BBZ
(applicant)

FILE NO/S:

CA No 325 of 2010
DC No 202 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

6 April 2011

DELIVERED AT:

Brisbane

HEARING DATE:

6 April 2011

JUDGES:

White JA, Margaret Wilson AJA and Peter Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The application for an extension of time within which to appeal against sentence is granted; and

2. The time to bring the appeal against sentence is extended to 24 December 2010.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – where applicant found guilty of one count of maintaining an unlawful sexual relationship with a child under 16 with circumstances of aggravation, four counts of indecent treatment of a child under 16 with circumstances of aggravation and four counts of sodomy of a person under 18 – where applicant sought extension of time in which to apply for leave to appeal against sentence – where applicant contends that there should have been a separate sentence for each count of which applicant was convicted – whether leave to appeal should be granted

COUNSEL:

P J Callaghan SC, with A Boe, for the applicant
M J Copley SC for the respondent

SOLICITORS:

Boe Williams for the applicant
Director of Public Prosecutions (Queensland) for the respondent

[1] WHITE JA: I'll ask Justice Wilson to give her reasons.

[2] MARGARET WILSON AJA: This is an application for an extension of time in which to apply for leave to appeal against sentence.

[3] On 17 May 2007, the applicant was convicted of one count of maintaining an unlawful sexual relationship with a child under 16 with circumstances of aggravation, four counts of indecent treatment of a child under 16 with circumstances of aggravation and four counts of sodomy of a person under 18 with circumstances of aggravation. He was acquitted of three counts of indecent treatment of the same child. The child was his daughter.

[4] In her sentencing remarks, the learned sentencing Judge said,

"At the end of the day, the jury have convicted you of a number of offences relating to when the child was 14 or 15 years of age. They have found you not guilty of the offences which substantively related to when she was a much younger child but they have convicted you of the maintaining."

She went on to impose a sentence on each count but concurrently of 10 years' imprisonment.

[5] An appeal against conviction was dismissed by this Court on 19 October 2007. The applicant has deposed to not understanding that that appeal had been brought only in relation to the convictions. He has deposed to having instructed his legal representatives to appeal against sentence also.

[6] Since the appeal was dismissed,…

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 BBZ

Details

AGLC: R v BBZ [2011] QCA 62
Case: [2011] QCA 62
Decision Date: 6 April 2011

CaseChat Overview and Summary

The respondent, BBZ, was found guilty of maintaining an unlawful sexual relationship with a child under 16, with aggravating circumstances, four counts of indecent treatment of a child under 16, also with aggravating circumstances, and four counts of sodomy of a person under 18. BBZ sought an extension of time to apply for leave to appeal against the sentence imposed. The primary issue for determination was whether leave to appeal should be granted, considering the applicant's contention that a separate sentence should have been imposed for each count of which he was convicted.

The court considered the applicant's argument that a separate sentence should have been imposed for each count. It found that while the sentencing judge did not explicitly state that a separate sentence was not imposed, the overall sentence reflected the cumulative impact of the offences. The court held that the application for leave to appeal was made within a reasonable time and that there were prospects of success on the appeal, particularly concerning the contention regarding the imposition of separate sentences. Consequently, the application for an extension of time was granted, and the time to bring the appeal against sentence was extended to 24 December 2010.

The court's decision was based on the merits of the application and the potential for the appeal to succeed, particularly in light of the contention about the separate sentencing issue. The granting of the extension of time allowed the applicant to pursue the appeal with the opportunity to argue that the imposition of a single sentence, rather than separate sentences, was inappropriate. This decision ensures that the applicant's right to appeal is preserved, and the potential errors in the sentencing process can be reviewed by a higher court.

Orders

Orders of the court

1. The application for an extension of time within which to appeal against sentence is granted; and

2. The time to bring the appeal against sentence is extended to 24 December 2010.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v BBZ [2011] QCA 62
PARTIES:	R v BBZ (applicant)
FILE NO/S:	CA No 325 of 2010 DC No 202 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	6 April 2011
DELIVERED AT:	Brisbane
HEARING DATE:	6 April 2011
JUDGES:	White JA, Margaret Wilson AJA and Peter Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for an extension of time within which to appeal against sentence is granted; and 2. The time to bring the appeal against sentence is extended to 24 December 2010.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – where applicant found guilty of one count of maintaining an unlawful sexual relationship with a child under 16 with circumstances of aggravation, four counts of indecent treatment of a child under 16 with circumstances of aggravation and four counts of sodomy of a person under 18 – where applicant sought extension of time in which to apply for leave to appeal against sentence – where applicant contends that there should have been a separate sentence for each count of which applicant was convicted – whether leave to appeal should be granted
COUNSEL:	P J Callaghan SC, with A Boe, for the applicant M J Copley SC for the respondent
SOLICITORS:	Boe Williams for the applicant Director of Public Prosecutions (Queensland) for the respondent