R v Boehmke - [2011] QCA 174

SUPREME COURT OF QUEENSLAND

CITATION:

R v Boehmke [2011] QCA 174

PARTIES:

R
v
BOEHMKE, Michael John
(applicant)

FILE NO/S:

CA No 105 of 2011
DC No 689 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Orders delivered ex tempore 15 July 2011
Reasons delivered 26 July 2011

DELIVERED AT:

Brisbane

HEARING DATE:

15 July 2011

JUDGES:

Margaret McMurdo P, Muir JA and Dalton J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 15 July 2011:

1.    The application for leave to appeal is granted.

2.    The appeal is allowed to the following extent.

3.    The sentences imposed on counts 3 and 4 and the parole eligibility date are set aside.

4.    On count 3 the applicant is sentenced to 12 months imprisonment.

5.    On count 4 the applicant is sentenced to two years imprisonment.

6.    The sentences imposed on counts 2, 3 and 4 are to be suspended on 15 July 2011 with an operational period of three years.

7.    The sentence imposed at first instance is otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of five counts of indecent treatment of a child under 16 and one count of stealing – where applicant was sentenced to three years imprisonment and was ordered to serve two years probation – where applicant applied for leave to appeal against his sentence, contending that it was manifestly excessive – where applicant contends for a sentence of 12 to 18 months to operate concurrently with the probation order – where the applicant argues that the judge erred in sentencing him to a probation order in conjunction with a three year term of imprisonment – whether the judge erred in imposing a probation order to operate concurrently with a sentence of imprisonment longer than one year – whether the sentence imposed was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 92(1)(b)

R v Demmery [2005] QCA 462, considered
R v Hood [2005] 2 Qd R 54; [2005] QCA 159, cited
R v Hughes [1999] 1 Qd R 389; [1998] QCA 61, cited
R v MAO; ex parte A-G [2006] QCA 99, considered
R v O[2001] QCA 40, considered
Sharpe v R [2006] NSWCCA 255, cited

COUNSEL:

J J Allen for the applicant
M B Lehane for the respondent

SOLICITORS:

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

MARGARET McMURDO P: On 15 July 2011 at the appeal hearing this Court made the following orders:

"1. The application for leave to appeal is granted.

2. The appeal is allowed to the following extent.

3. The sentences imposed on counts 3 and 4 and the parole eligibility date are set aside.

4. On count 3 the applicant…

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 Boehmke

Details

AGLC: R v Boehmke [2011] QCA 174
Case: [2011] QCA 174
Decision Date: 26 July 2011

CaseChat Overview and Summary

The applicant, Boehmke, was convicted of five counts of indecent treatment of a child under 16 and one count of stealing. Following his conviction, he was sentenced to three years imprisonment and was also ordered to serve two years probation. Boehmke applied for leave to appeal against his sentence, contending that it was manifestly excessive. He sought a sentence of 12 to 18 months to operate concurrently with the probation order. The applicant argued that the judge erred in sentencing him to a probation order in conjunction with a three-year term of imprisonment. The central issues for the court were whether the judge erred in imposing a probation order to operate concurrently with a sentence of imprisonment longer than one year, and whether the sentence imposed was manifestly excessive.

The court considered the relevant principles and authorities concerning the imposition of concurrent sentences and the appropriate use of probation orders. It noted that a probation order should not operate concurrently with a term of imprisonment longer than one year, as it would render the probation order ineffective. The court concluded that the judge erred in imposing the probation order to operate concurrently with a sentence of imprisonment longer than one year. In terms of the overall sentence, the court found that while the sentence was not manifestly excessive, the sentences imposed on counts 3 and 4, and the parole eligibility date, were set aside as they were not properly aligned with the principles of concurrent sentencing.

The application for leave to appeal was granted, and the appeal was allowed to the extent that the sentences imposed on counts 3 and 4 and the parole eligibility date were set aside. On count 3, the applicant was sentenced to 12 months imprisonment, and on count 4, he was sentenced to two years imprisonment. The sentences imposed on counts 2, 3, and 4 were to be suspended on 15 July 2011, with an operational period of three years. The sentence imposed at first instance was otherwise confirmed.

Orders

Orders of the court

Delivered ex tempore on 15 July 2011:

1. The application for leave to appeal is granted.

2. The appeal is allowed to the following extent.

3. The sentences imposed on counts 3 and 4 and the parole eligibility date are set aside.

4. On count 3 the applicant is sentenced to 12 months imprisonment.

5. On count 4 the applicant is sentenced to two years imprisonment.

6. The sentences imposed on counts 2, 3 and 4 are to be suspended on 15 July 2011 with an operational period of three years.

7. The sentence imposed at first instance is otherwise confirmed.

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 Boehmke [2011] QCA 174
PARTIES:	R v BOEHMKE, Michael John (applicant)
FILE NO/S:	CA No 105 of 2011 DC No 689 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	Orders delivered ex tempore 15 July 2011 Reasons delivered 26 July 2011
DELIVERED AT:	Brisbane
HEARING DATE:	15 July 2011
JUDGES:	Margaret McMurdo P, Muir JA and Dalton J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 15 July 2011: 1. The application for leave to appeal is granted. 2. The appeal is allowed to the following extent. 3. The sentences imposed on counts 3 and 4 and the parole eligibility date are set aside. 4. On count 3 the applicant is sentenced to 12 months imprisonment. 5. On count 4 the applicant is sentenced to two years imprisonment. 6. The sentences imposed on counts 2, 3 and 4 are to be suspended on 15 July 2011 with an operational period of three years. 7. The sentence imposed at first instance is otherwise confirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of five counts of indecent treatment of a child under 16 and one count of stealing – where applicant was sentenced to three years imprisonment and was ordered to serve two years probation – where applicant applied for leave to appeal against his sentence, contending that it was manifestly excessive – where applicant contends for a sentence of 12 to 18 months to operate concurrently with the probation order – where the applicant argues that the judge erred in sentencing him to a probation order in conjunction with a three year term of imprisonment – whether the judge erred in imposing a probation order to operate concurrently with a sentence of imprisonment longer than one year – whether the sentence imposed was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 92(1)(b) R v Demmery [2005] QCA 462, considered R v Hood [2005] 2 Qd R 54; [2005] QCA 159, cited R v Hughes [1999] 1 Qd R 389; [1998] QCA 61, cited R v MAO; ex parte A-G [2006] QCA 99, considered R v O[2001] QCA 40, considered Sharpe v R [2006] NSWCCA 255, cited
COUNSEL:	J J Allen for the applicant M B Lehane for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent