R v Brincat; Ex parte - [2020] QCA 248

SUPREME COURT OF QUEENSLAND

CITATION:

R v Brincat; Ex parte Attorney-General (Qld) [2020] QCA 248

PARTIES:

R
v
BRINCAT, Dennis Gerard
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 160 of 2020
DC No 46 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Attorney-General (Qld)

ORIGINATING COURT:

District Court at Cairns – Date of Sentence: 12 July 2020 (Morzone QC DCJ)

DELIVERED EX TEMPORE ON:

12 November 2020

DELIVERED AT:

Brisbane

HEARING DATE:

12 November 2020

JUDGES:

Morrison and McMurdo JJA and Henry J

ORDERS:

1.   Allow the appeal.

2.   Set aside the orders made on 21 July 2020.

3.    Order that on count 1 on the indictment, the respondent be sentenced to a term of six months’ imprisonment.

4.    On count 2 on the indictment, order that the respondent be sentenced to a term of 18 months’ imprisonment.

5.    Order that the respondent be eligible for parole on 12 May 2021.

6.   Direct that a warrant issue for the arrest of the respondent to lie in the registry for seven days.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent was convicted on his pleas of guilty for giving false or misleading information contrary to s 51(1) of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 and for possessing child exploitation material – where, for the first offence, the respondent was sentenced to 18 months’ probation, and for the second offence, 18 months’ imprisonment suspended immediately with an operational period of two years – where the respondent had a relevant criminal history – where the appellant submits that the sentences imposed were manifestly inadequate by the lack of a requirement to serve a period of actual custody – where the respondent concedes that his conduct was serious and it was aggravated by his relevant criminal history – whether the sentences were manifestly inadequate

COUNSEL:

S J Farnden for the appellant
J J Sheridan for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Arnell & Cooper Lawyers Pty Ltd for the respondent

McMURDO JA: This is an appeal against sentence by the Attorney-General under s 669A(1), of the Criminal Code. In the District Court on 21 July this year, the respondent was sentenced for two offences. The first was that he gave false or misleading information, contrary to s 51(1) of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004. For that offence, he was sentenced to 18 months’ probation. The second offence was that, in contravention of s 228D(1)(b) of the Criminal Code, he possessed child exploitation material and for that offence he was sentenced to 18 months’ imprisonment, suspended immediately with an operational period of two years.
The respondent had a relevant criminal history. In 2015, he pleaded guilty to one offence of using a carriage service to access child pornography material, five offences 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 Brincat; Ex parte

Details

AGLC: R v Brincat; Ex parte [2020] QCA 248
Case: [2020] QCA 248
Decision Date: 12 November 2020

CaseChat Overview and Summary

The case of R v Brincat involved the respondent who had pleaded guilty to charges of providing false or misleading information in contravention of section 51(1) of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004, and to possessing child exploitation material. The court sentenced the respondent to 18 months’ probation for the first offence and 18 months’ imprisonment suspended immediately with an operational period of two years for the second offence. The appellant contested the sentences, arguing that they were manifestly inadequate as they did not require the respondent to serve any actual custodial time. The respondent, however, acknowledged the seriousness of his actions, which were exacerbated by his prior criminal record. The court was tasked with determining whether the sentences were indeed manifestly inadequate.

The primary legal issue before the court was whether the sentences imposed on the respondent were manifestly inadequate. The court considered the appellant's argument that the lack of any requirement for actual imprisonment rendered the sentences inadequate. The court also took into account the respondent’s criminal history and the nature of the offences committed. In assessing the sentences, the court had to balance the need for appropriate punishment and deterrence against the principles of proportionality and rehabilitation.

In its reasoning, the court concluded that the sentences were manifestly inadequate given the respondent's criminal history and the gravity of the offences. The court found that a custodial sentence was necessary to adequately address the respondent's conduct and to serve as a deterrent. The court allowed the appeal and set aside the previous orders. It ordered that the respondent be sentenced to six months’ imprisonment for the first offence and 18 months’ imprisonment for the second offence. The court also specified that the respondent would be eligible for parole on 12 May 2021 and directed that a warrant issue for the respondent's arrest to lie in the registry for seven days.

Orders

Orders of the court

1. Allow the appeal.

2. Set aside the orders made on 21 July 2020.

3. Order that on count 1 on the indictment, the respondent be sentenced to a term of six months’ imprisonment.

4. On count 2 on the indictment, order that the respondent be sentenced to a term of 18 months’ imprisonment.

5. Order that the respondent be eligible for parole on 12 May 2021.

6. Direct that a warrant issue for the arrest of the respondent to lie in the registry for seven days.

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 Brincat; Ex parte Attorney-General (Qld) [2020] QCA 248
PARTIES:	R v BRINCAT, Dennis Gerard (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 160 of 2020 DC No 46 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by Attorney-General (Qld)
ORIGINATING COURT:	District Court at Cairns – Date of Sentence: 12 July 2020 (Morzone QC DCJ)
DELIVERED EX TEMPORE ON:	12 November 2020
DELIVERED AT:	Brisbane
HEARING DATE:	12 November 2020
JUDGES:	Morrison and McMurdo JJA and Henry J
ORDERS:	1. Allow the appeal. 2. Set aside the orders made on 21 July 2020. 3. Order that on count 1 on the indictment, the respondent be sentenced to a term of six months’ imprisonment. 4. On count 2 on the indictment, order that the respondent be sentenced to a term of 18 months’ imprisonment. 5. Order that the respondent be eligible for parole on 12 May 2021. 6. Direct that a warrant issue for the arrest of the respondent to lie in the registry for seven days.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent was convicted on his pleas of guilty for giving false or misleading information contrary to s 51(1) of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 and for possessing child exploitation material – where, for the first offence, the respondent was sentenced to 18 months’ probation, and for the second offence, 18 months’ imprisonment suspended immediately with an operational period of two years – where the respondent had a relevant criminal history – where the appellant submits that the sentences imposed were manifestly inadequate by the lack of a requirement to serve a period of actual custody – where the respondent concedes that his conduct was serious and it was aggravated by his relevant criminal history – whether the sentences were manifestly inadequate
COUNSEL:	S J Farnden for the appellant J J Sheridan for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Arnell & Cooper Lawyers Pty Ltd for the respondent