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R v Buckley

R v Buckley

Case [2008] QCA 45 7 March 2008

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Buckley [2008] QCA 45

PARTIES:

R
v
BUCKLEY, Jason Charles
(applicant/ appellant)

FILE NO/S:

CA No 327 of 2003
DC No 1204 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

7 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2008

JUDGES:

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

ORDER:

1.    Allow the application for leave to appeal

2.    Allow the appeal to the extent of setting aside the sentences imposed in respect of all counts on the indictment, but not the declaration in respect of pre-sentence custody

3.    For each offence of rape, the applicant is to be imprisoned for 22 years

4.    For counts 3, 5 and 6 the applicant is to be imprisoned for 5, 5 and 4 years respectively

5.    The term of imprisonment imposed for count 6 is that imposed by the sentencing judge

6.    All such terms to be concurrent with each other and with the other terms of imprisonment imposed on 11 September 2003

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CHARACTER OF OFFENCE – GENERALLY – where the applicant pleaded guilty to five counts of rape, one count of burglary, one count of indecent assault and one count of grievous bodily harm – where an indefinite sentence pursuant to s 163 Penalties and Sentences Act 1992 (Qld) was imposed – whether the sentencing judge had adequate regard to psychiatric evidence of decreased risk of re-offending over time with appropriate medical treatment and support programs – whether the common law principle that an indefinite sentence should only be exercised in exceptional cases was adhered to

CRIMINAL LAW — APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION — APPEAL AND NEW TRIAL — APPEAL AGAINST SENTENCE — PARTICULAR GROUNDS — FURTHER EVIDENCE — GENERAL PRINCIPLES — where applicant made application to adduce further psychological and psychiatric reports after the applicant’s incarceration – whether, if the reports were in evidence at sentence, a different sentence was warranted in law

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13
Penalties and Sentences Act 1992 (Qld), s 163

Buckley v R (2006) 80 ALJR 605; [2006] HCA 7, discussed
R v Maniadis [1997] 1 Qd R 593: [1996] QCA 242, applied

COUNSEL:

P E Smith for the applicant/appellant
D L Meredith for the respondent

SOLICITORS:

Fisher Dore Lawyers for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

[1] MUIR JA: The applicant was sentenced on 11 September 2003 in the District Court to an indefinite sentence pursuant to section 163 of the Penalties and Sentences Act 1992 (Qld) for five counts of rape, one count of burglary, one count of indecent assault and one count of grievous bodily harm. In his sentencing remarks the…

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 Buckley

Details

AGLC: R v Buckley [2008] QCA 45
Case: [2008] QCA 45
Decision Date: 7 March 2008

CaseChat Overview and Summary

The case of R v Buckley was heard by the Queensland Court of Appeal. The appellant, Buckley, had pleaded guilty to multiple offences including five counts of rape, one count of burglary, one count of indecent assault, and one count of grievous bodily harm. Following his pleas, Buckley was sentenced to an indefinite sentence under section 163 of the Penalties and Sentences Act 1992 (Qld). The appellant sought to appeal the sentences imposed, arguing that the sentencing judge did not adequately consider psychiatric evidence suggesting a decreased risk of re-offending with appropriate medical treatment and support programs. Furthermore, Buckley contended that the sentencing judge failed to adhere to the common law principle that indefinite sentences should only be imposed in exceptional circumstances.

The central legal issues before the Court of Appeal involved the adequacy of the sentencing judge's consideration of psychiatric evidence and whether the imposition of an indefinite sentence was justified under the relevant statutory and common law principles. Buckley's counsel argued that if the psychiatric evidence had been properly considered, it would have led to a different sentencing outcome. Additionally, the Court had to determine whether the additional psychological and psychiatric reports presented post-incarceration warranted a different sentence if they had been available at the time of sentencing. The appeal hinged on whether the original sentences were manifestly excessive or inadequate in light of the evidence presented.

The Court of Appeal allowed Buckley's application for leave to appeal and set aside the sentences imposed. The Court found that the sentencing judge did not give adequate weight to the psychiatric evidence regarding Buckley's decreased risk of re-offending with appropriate treatment and support. The Court held that the indefinite sentences were not warranted in light of the psychiatric evidence and the common law principle that such sentences should only be imposed in exceptional cases. Consequently, the Court substituted the sentences with specific terms of imprisonment for each offence, ordering concurrent sentences for all counts. The Court determined that the sentences imposed by the lower court were manifestly excessive, warranting the substitution of the sentences as specified in the orders.

Orders

Orders of the court

1. Allow the application for leave to appeal

2. Allow the appeal to the extent of setting aside the sentences imposed in respect of all counts on the indictment, but not the declaration in respect of pre-sentence custody

3. For each offence of rape, the applicant is to be imprisoned for 22 years

4. For counts 3, 5 and 6 the applicant is to be imprisoned for 5, 5 and 4 years respectively

5. The term of imprisonment imposed for count 6 is that imposed by the sentencing judge

6. All such terms to be concurrent with each other and with the other terms of imprisonment imposed on 11 September 2003

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Buckley [2008] QCA 45

Most Recent Citation

Carolan v The Queen [2015] VSCA 167

Cases citing this decision · 12 of 12 shown

Attorney-General for the State of Queensland v Buckley
[2022] QSC 64 Para 1

…ces of 22 years’ imprisonment on each count of rape.[3] [1] R v Buckley [2004] QCA 148. [2] Buckley v The Queen (2006) 224 ALR 416. [3] R v Buckley [2008] QCA 45.…
Calanca v Parole Board Queensland
[2019] QSC 34 Para 23

…discretion generally, but also specifically in light of the basis upon which it reached its decision in this case. The point is made in R v Buckley [2008] QCA 45 at [20], albeit in a different context, that “the prospects of accurately predicting the likelihood of a prisoner’s re-offending once released will be…
Buckley v Queensland Parole Board
[2017] QSC 41 Para 12

…When the matter was subsequently before the Court of Appeal ( R v Buckley [2008] QCA 45) Muir JA (with whom the other members of the court agreed) at [9] quoted from Dr Yellowlees’ report dated 9 January 2001: “The applicant has regularly performed sexual acts on a variety of animals since the age of 15, and adm…
Carolan v The Queen
[2015] VSCA 167 Para 1

…[40] Sentencing Act 1991 s 18A(3). [41][1998] 2 VR 229, 260. [42] Reference was made to the Queensland position in the oral hearing. In R v Buckley [2008] QCA 45, the Queensland Court of Appeal considered the supervision regime when hearing an appeal against the imposition of an indefinite sentence, there being…
R v Garland
[2014] QCA 3 Para 1

…ueen , as to the uncertainty involved in assessing the risk in the particular temporal context.[40] [40][2006] HCA 7, at [42]-[43]; R v Buckley [2008] QCA 45, at [20]-[23].…
R v Turnbull
[2013] QCA 374 Para 1

…[2000] QCA 266; R v Watcho [1998] QCA 331; R v Burley ex parte Attorney-General (Qld) [1998] QCA 98; R v Breckenridge [1966] Qd R 189; R v Buckley [2008] QCA 45; R v Hussein & Hussein [2006] QCA 411; R v Dargin [2013] QCA 20; R v Colless [2010] QCA 26.…
R v Garland
[2012] QDC 228 Para 1

…s interpretation of the legislation was to be applied in the circumstances of the case. It therefore is of little additional assistance here. [6] [2008] QCA 45.…
R v Ray
[2011] QCA 365 Para 1

…years on five rape charges. The facts were set out by Holmes JA in the first leave to appeal application and quoted by Muir JA:[17] [16] R v Buckley [2008] QCA 45. [17]At [5].…
R v Colless
[2010] QCA 26 Para 1

…In selecting 25 years imprisonment as the penalty for the rapes, His Honour reviewed a number of cases, concluding that R v Buckley [2008] QCA 45 was of the greatest assistance. Buckley pleaded guilty to five rapes, burglary, indecent assault and grievous bodily harm. On appeal, Buckley was sentenced to 22 years…
R v Colless
[2009] QDC 283

…[2000] QCA 266, cited R v Bulger [1990] 2 Qd R 559, cited Reg. v Breckenridge [1966] Qd R 189, cited R v Buckley [2008] QCA 45, cited R v Burley; ex parte Attorney-General of Queensland [1998] QCA 098, cited R v Harman [1989] 1 Qd R 414, cited R v Hornby [1996] QCA 446, cited R v Jackson [1988] CCA 011, cited R…
R v Smith
[2008] QDC 261

…Act 1992 (Qld) ss 163, 169, 170, 171, 173 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) CASES: Buckley v R (2006) 80 ALJR 605 R v Buckley [2008] QCA 45 R v Eades [2008] QDC 124 R v Smith [2001] QCA 417…
R v. Eades
[2008] QDC 124 Para 1

…d at first instance and instead imposed a sentence which accorded with the nominal sentence originally indicated by the sentencing judge: R v Buckley [2008] QCA 45.…

View all 12 citing cases →

Cases cited in this decision · 3 of 3 shown

Buckley v The Queen
[2006] HCA 7

…l Offenders) Act 2003 (Qld), s 13 Penalties and Sentences Act 1992 (Qld), s 163 Buckley v R (2006) 80 ALJR 605; [2006] HCA 7, discussed R v Maniadis [1997] 1 Qd R 593: [1996] QCA 242, applied COUNSEL: P E Smith for the applicant/appellant D L Meredith for the respondent SOLICITORS: Fisher Dore Lawyers for the a…
R v Buckley
[2004] QCA 148

…e offences, it is convenient to quote a passage from the reasons of Holmes J in this court on the application for leave to appeal[4]: [4] R v Buckley [2004] QCA 148…
R v Maniadis
[1996] QCA 242

…s Act 1992 (Qld), s 163 Buckley v R (2006) 80 ALJR 605; [2006] HCA 7, discussed R v Maniadis [1997] 1 Qd R 593: [1996] QCA 242, applied COUNSEL: P E Smith for the applicant/appellant D L Meredith for the respondent SOLICITORS: Fisher Dore Lawyers for the applicant/appellant Director of Public Prosecutions (Queens…

Legislation cited in this decision · 2

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)
13 2 mentions
Penalties and Sentences Act 1992 (Qld)
163 2 mentions

CITATION:	R v Buckley [2008] QCA 45
PARTIES:	R v BUCKLEY, Jason Charles (applicant/ appellant)
FILE NO/S:	CA No 327 of 2003 DC No 1204 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	7 March 2008
DELIVERED AT:	Brisbane
HEARING DATE:	18 February 2008
JUDGES:	Muir and Fraser JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Allow the application for leave to appeal 2. Allow the appeal to the extent of setting aside the sentences imposed in respect of all counts on the indictment, but not the declaration in respect of pre-sentence custody 3. For each offence of rape, the applicant is to be imprisoned for 22 years 4. For counts 3, 5 and 6 the applicant is to be imprisoned for 5, 5 and 4 years respectively 5. The term of imprisonment imposed for count 6 is that imposed by the sentencing judge 6. All such terms to be concurrent with each other and with the other terms of imprisonment imposed on 11 September 2003
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CHARACTER OF OFFENCE – GENERALLY – where the applicant pleaded guilty to five counts of rape, one count of burglary, one count of indecent assault and one count of grievous bodily harm – where an indefinite sentence pursuant to s 163 Penalties and Sentences Act 1992 (Qld) was imposed – whether the sentencing judge had adequate regard to psychiatric evidence of decreased risk of re-offending over time with appropriate medical treatment and support programs – whether the common law principle that an indefinite sentence should only be exercised in exceptional cases was adhered to CRIMINAL LAW — APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION — APPEAL AND NEW TRIAL — APPEAL AGAINST SENTENCE — PARTICULAR GROUNDS — FURTHER EVIDENCE — GENERAL PRINCIPLES — where applicant made application to adduce further psychological and psychiatric reports after the applicant’s incarceration – whether, if the reports were in evidence at sentence, a different sentence was warranted in law Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13 Penalties and Sentences Act 1992 (Qld), s 163 Buckley v R (2006) 80 ALJR 605; [2006] HCA 7, discussed R v Maniadis [1997] 1 Qd R 593: [1996] QCA 242, applied
COUNSEL:	P E Smith for the applicant/appellant D L Meredith for the respondent
SOLICITORS:	Fisher Dore Lawyers for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent