R v Beesley - [2008] QCA 240

SUPREME COURT OF QUEENSLAND

CITATION:

R v Beesley [2008] QCA 240

PARTIES:

R
v
BEESLEY, Trevor John
(applicant/appellant)

FILE NO/S:

CA No 125 of 2008
DC No 350 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED EX TEMPORE ON:

19 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

19 August 2008

JUDGES:

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

ORDERS:

1)   Application for leave to appeal granted

2)   Appeal be allowed

3)   The sentences imposed at first instance bet set aside

4)   The following sentences to be served concurrently be substituted:

a)   Count 1: four years imprisonment suspended after 12 months with an operational period of four years

b)   Counts 2, 3 and 4: 12 months imprisonment

c)   Counts 5 and 6: 18 months imprisonment suspended after six months with an operational period of 18 months

5)   The court declares as time already served the 122 days served for those sentences in the period between 18 April 2008 and 19 August 2008

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERAL PRINCIPLES – where the applicant pleaded guilty and was convicted of one count of maintaining an unlawful relationship of a sexual nature with a child under 16 years, three counts of unlawfully and indecently dealing with a child under 16 years and two counts of unlawful carnal knowledge of a girl under 16 years in the applicant’s care – where the sentencing judge imposed only one sentence of five and a half years for all six offences during the sentencing proceedings – where the court order sheet indicated separate sentences for each six offences – whether the sentencing judge’s discretion miscarried

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 pleaded guilty and was convicted of one count of maintaining an unlawful relationship of a sexual nature with a child under 16 years, three counts of unlawfully and indecently dealing with a child under 16 years and two counts of unlawful carnal knowledge of a girl under 16 years in the applicant’s care – where the applicant was sentenced to a term of imprisonment of five and a half years for the maintaining offence – where the applicant was 51 and 52 years old and the complainant 14 and 15 years old at the time of the offences – where the applicant was a friend of the mother of one of the complainant’s girlfriends – where the complainant ran away from home and resided with the applicant in his caravan – where the applicant has no prior criminal…

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 Beesley

Details

AGLC: R v Beesley [2008] QCA 240
Case: [2008] QCA 240
Decision Date: 19 August 2008

CaseChat Overview and Summary

The appeal in the matter of R v Beesley concerns the applicant's challenge to the sentence imposed by the sentencing judge. The applicant was convicted of multiple sexual offences against a minor, specifically one count of maintaining an unlawful relationship of a sexual nature with a child under 16 years, three counts of unlawfully and indecently dealing with a child under 16 years, and two counts of unlawful carnal knowledge of a girl under 16 years. The applicant was sentenced to a total of five and a half years imprisonment, which was to be served concurrently. However, the court order sheet indicated separate sentences for each of the six offences. The applicant appealed against the sentence, arguing that the sentencing judge's discretion miscarried and that the sentence imposed was manifestly excessive.

The legal issue before the court was whether the sentencing judge had misapplied their discretion, and if so, whether the sentence imposed was manifestly excessive. The court considered the principles of sentencing and the nature of the offences. The court noted that the applicant had no prior criminal history, had a good work history, and had demonstrated remorse. The court also considered the age of the applicant and the complainant at the time of the offences, and the fact that there was little prospect of the applicant re-offending. The court concluded that the sentencing judge had misapplied their discretion by imposing only one sentence for all six offences, and that the sentence imposed was manifestly excessive.

The court granted the application for leave to appeal and allowed the appeal. The sentences imposed at first instance were set aside, and new sentences were substituted. Count 1 was to be four years imprisonment suspended after 12 months with an operational period of four years. Counts 2, 3 and 4 were to be 12 months imprisonment. Counts 5 and 6 were to be 18 months imprisonment suspended after six months with an operational period of 18 months. The court declared as time already served the 122 days served for those sentences in the period between 18 April 2008 and 19 August 2008. The court found that the original sentence imposed was manifestly excessive, and that the new sentences were more appropriate given the circumstances of the case.

Orders

Orders of the court

1) Application for leave to appeal granted

2) Appeal be allowed

3) The sentences imposed at first instance bet set aside

4) The following sentences to be served concurrently be substituted:

a) Count 1: four years imprisonment suspended after 12 months with an operational period of four years

b) Counts 2, 3 and 4: 12 months imprisonment

c) Counts 5 and 6: 18 months imprisonment suspended after six months with an operational period of 18 months

5) The court declares as time already served the 122 days served for those sentences in the period between 18 April 2008 and 19 August 2008

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 Beesley [2008] QCA 240
PARTIES:	R v BEESLEY, Trevor John (applicant/appellant)
FILE NO/S:	CA No 125 of 2008 DC No 350 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED EX TEMPORE ON:	19 August 2008
DELIVERED AT:	Brisbane
HEARING DATE:	19 August 2008
JUDGES:	Holmes and Muir JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1) Application for leave to appeal granted 2) Appeal be allowed 3) The sentences imposed at first instance bet set aside 4) The following sentences to be served concurrently be substituted: a) Count 1: four years imprisonment suspended after 12 months with an operational period of four years b) Counts 2, 3 and 4: 12 months imprisonment c) Counts 5 and 6: 18 months imprisonment suspended after six months with an operational period of 18 months 5) The court declares as time already served the 122 days served for those sentences in the period between 18 April 2008 and 19 August 2008
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERAL PRINCIPLES – where the applicant pleaded guilty and was convicted of one count of maintaining an unlawful relationship of a sexual nature with a child under 16 years, three counts of unlawfully and indecently dealing with a child under 16 years and two counts of unlawful carnal knowledge of a girl under 16 years in the applicant’s care – where the sentencing judge imposed only one sentence of five and a half years for all six offences during the sentencing proceedings – where the court order sheet indicated separate sentences for each six offences – whether the sentencing judge’s discretion miscarried 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 pleaded guilty and was convicted of one count of maintaining an unlawful relationship of a sexual nature with a child under 16 years, three counts of unlawfully and indecently dealing with a child under 16 years and two counts of unlawful carnal knowledge of a girl under 16 years in the applicant’s care – where the applicant was sentenced to a term of imprisonment of five and a half years for the maintaining offence – where the applicant was 51 and 52 years old and the complainant 14 and 15 years old at the time of the offences – where the applicant was a friend of the mother of one of the complainant’s girlfriends – where the complainant ran away from home and resided with the applicant in his caravan – where the applicant has no prior criminal…