R v Brackenrig - [2010] QCA 41

SUPREME COURT OF QUEENSLAND

CITATION:

R v Brackenrig [2010] QCA 41

PARTIES:

R
v
BRACKENRIG, David Anthony
(applicant)

FILE NO/S:

CA No 312 of 2009
DC No 1998 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

5 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

15 February 2010

JUDGES:

McMurdo P, Keane and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made.

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the applicant pleaded guilty to indecent treatment of a child under 12, possession of child exploitation material and using a carriage service to access child pornography material – the applicant was sentenced to a total of two years imprisonment with parole eligibility after eight months and a good behaviour bond for four years – the applicant is a reportable offender under the Child Protection (Offender Reporting) Act 2004 (Qld) – whether the sentence was manifestly excessive

Crimes Act 1914 (Cth), s 20(1)(b)
Penalties and Sentences Act 1992 (Qld), s 9(6)(d)

R v SAQ[2002] QCA 221, considered
R v Schirmer[1995] QCA 242, considered

COUNSEL:

A E Cappellano for the applicant
M B Lehane for the respondent

SOLICITORS:

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

McMURDO P: The applicant pleaded guilty to indecent treatment of a child under 12 (count 1), possessing child exploitation material (count 2) and using a carriage service to access child pornography material (count 3). He was sentenced to two years imprisonment on count 1 and 12 months imprisonment on count 2, with an order that he be eligible for parole on 9 August 2010, that is, after eight months. On count 3, he was sentenced under s 20(1)(b) Crimes Act 1914 (Cth) to 12 months imprisonment with release after four months upon entering into a recognizance of $1,000 conditioned that he be of good behaviour for a period of four years. He applies for leave to appeal against his sentence contending that it is manifestly excessive.

Antecedents

The applicant was 52 and 53 years old at the time of his offending and 54 at sentence. Although he had not previously been sentenced to actual imprisonment, he had a concerning and relevant criminal history. In 1989, he was fined for minor offences of dishonesty. Of much more significance, was his appearance in the Ipswich District Court on 25 January 1996 for five counts of indecently dealing with a child under 12 years and one count of indecent dealing with a child under 12 years with a circumstance of aggravation. On each of those charges, he was sentenced to six months imprisonment, wholly suspended for a period of two years. He was dealt with for a minor offence of dishonesty in 2008 and for breach of…

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 Brackenrig

Details

AGLC: R v Brackenrig [2010] QCA 41
Case: [2010] QCA 41
Decision Date: 5 March 2010

CaseChat Overview and Summary

The case of R v Brackenrig involves an appeal against a sentence handed down by the District Court of Queensland. The applicant pleaded guilty to multiple charges, including indecent treatment of a child under 12, possession of child exploitation material, and using a carriage service to access child pornography material. The District Court sentenced the applicant to a total of two years imprisonment with parole eligibility after serving eight months, in addition to a good behaviour bond for four years. The applicant also falls under the category of a reportable offender as defined by the Child Protection (Offender Reporting) Act 2004 (Qld). The applicant contested the severity of the sentence, arguing that it was manifestly excessive.

The primary legal issue the court was required to decide was whether the sentence imposed by the District Court was manifestly excessive. The court considered the principles of sentencing, particularly the need for consistency in sentencing for similar offences and the general and specific deterrence of such crimes. The court also examined the circumstances of the case, including the nature and severity of the crimes, the offender's criminal history, and the need to protect the community. Additionally, the court assessed whether the sentence adequately reflected the gravity of the offences and whether there were any mitigating or aggravating factors that warranted a departure from the usual sentencing range.

In determining the appeal, the court examined the sentencing remarks of the District Court judge and the relevant statutory guidelines. The court noted that the District Court had thoroughly considered the offender's culpability, the harm caused, and the need for deterrence and denunciation. The court held that the sentence was within the appropriate range for the crimes committed and did not find it to be manifestly excessive. The court also noted that the offender was subject to significant ongoing supervision and restrictions under the good behaviour bond and the reporting requirements. Consequently, the appeal against the sentence was dismissed, and the application for leave to appeal was refused.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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 Brackenrig [2010] QCA 41
PARTIES:	R v BRACKENRIG, David Anthony (applicant)
FILE NO/S:	CA No 312 of 2009 DC No 1998 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	5 March 2010
DELIVERED AT:	Brisbane
HEARING DATE:	15 February 2010
JUDGES:	McMurdo P, Keane and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made.
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the applicant pleaded guilty to indecent treatment of a child under 12, possession of child exploitation material and using a carriage service to access child pornography material – the applicant was sentenced to a total of two years imprisonment with parole eligibility after eight months and a good behaviour bond for four years – the applicant is a reportable offender under the Child Protection (Offender Reporting) Act 2004 (Qld) – whether the sentence was manifestly excessive Crimes Act 1914 (Cth), s 20(1)(b) Penalties and Sentences Act 1992 (Qld), s 9(6)(d) R v SAQ[2002] QCA 221, considered R v Schirmer[1995] QCA 242, considered
COUNSEL:	A E Cappellano for the applicant M B Lehane for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent