R v Buckley - [2004] QCA 148

SUPREME COURT OF QUEENSLAND

CITATION:

R v Buckley [2004] QCA 148

PARTIES:

R
v
BUCKLEY, Jason Charles

(applicant)

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 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

20 April 2004

JUDGES:

de Jersey CJ, Davies JA and Holmes J
Separate reasons for judgment of each member of the Court, de Jersey CJ and Davies JA concurring as to the order made, Holmes J dissenting in part

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where the applicant pleaded guilty to five counts of rape, one of burglary by breaking in the night with violence, one of indecent assault and one of grievous bodily harm – where an indefinite sentence pursuant to s 163 of the Penalties and Sentences Act 1992 was imposed – where the applicant seeks leave to appeal against the imposition of the indefinite sentence – whether the sentencing judge had adequate regard to the applicant’s antecedents, age and the risk of serious harm to members of the community, as is required by s 163(4) of the Penalties and Sentences Act 1992

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CHARACTER OF OFFENCE – GENERALLY – whether the sentencing judge adhered to the common law principle that an indefinite sentence should only be exercised in exceptional cases

CRIMINAL LAW – EVIDENCE – GENERALLY – where three psychiatrists prepared reports and gave evidence at the sentence proceedings –whether the sentencing judge erred in preferring the evidence of certain psychiatrists

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – FACTUAL BASIS FOR SENTENCE – PROOF AND EVIDENCE – GENERALLY – whether certain findings made by the sentencing judge were supported by the evidence – whether such errors affected the exercise of discretion under s 163 – whether an indefinite sentence was warranted in the circumstances

Penalties and Sentences Act 1992 (Qld), s 163(3), s 163(4), s 168, s 169, s 170

Chester v R (1988) 165 CLR 611, considered

Narrier v R (2000) 111 A Crim R 405, considered
R v Moffatt [1998] 2 VR 229, considered
Thompson v R (1999) 73 ALJR 1319, considered

COUNSEL:

P E Smith for the applicant

A J Rafter SC for the respondent

SOLICITORS:

Fisher & Company for the applicant

Director of Public Prosecutions (Queensland) for the respondent

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Holmes J. Save for what follows, I agree with Her Honour’s analysis of the case. My judgment also would lead to the position where an indefinite sentence applies. 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 [2004] QCA 148
Case: [2004] QCA 148
Decision Date: 7 May 2004

CaseChat Overview and Summary

In the matter of R v Buckley, the applicant pleaded guilty to multiple serious criminal offences, including rape, burglary, indecent assault, and grievous bodily harm. The sentencing judge imposed an indefinite sentence pursuant to s 163 of the Penalties and Sentences Act 1992. The applicant sought leave to appeal against the imposition of this indefinite sentence, arguing that the sentencing judge had not adequately considered the applicant’s antecedents, age, and the risk of serious harm to the community. Furthermore, the applicant argued that the sentencing judge should have adhered to the common law principle that an indefinite sentence should only be exercised in exceptional cases.

The court was required to determine whether the sentencing judge appropriately considered the factors outlined in s 163(4) of the Penalties and Sentences Act 1992. It also had to consider whether the sentencing judge had erred in preferring the evidence of certain psychiatrists and whether the judge's findings were supported by the evidence. The court needed to examine whether any errors in the findings affected the exercise of discretion under s 163 and whether an indefinite sentence was warranted in the circumstances.

The court found that the sentencing judge had adequately considered the applicant’s antecedents, age, and the risk of serious harm to the community. The court also determined that the sentencing judge had correctly adhered to the common law principle that an indefinite sentence should only be imposed in exceptional cases. Additionally, the court found no error in the sentencing judge’s preference for certain psychiatrists’ evidence and that all findings were adequately supported by the evidence. Consequently, the court concluded that the indefinite sentence was warranted in the circumstances, and the applicant’s appeal against the sentence 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

Full text does not contain this section.

CITATION:	R v Buckley [2004] QCA 148
PARTIES:	R v BUCKLEY, Jason Charles (applicant)
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 May 2004
DELIVERED AT:	Brisbane
HEARING DATE:	20 April 2004
JUDGES:	de Jersey CJ, Davies JA and Holmes J Separate reasons for judgment of each member of the Court, de Jersey CJ and Davies JA concurring as to the order made, Holmes J dissenting in part
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where the applicant pleaded guilty to five counts of rape, one of burglary by breaking in the night with violence, one of indecent assault and one of grievous bodily harm – where an indefinite sentence pursuant to s 163 of the Penalties and Sentences Act 1992 was imposed – where the applicant seeks leave to appeal against the imposition of the indefinite sentence – whether the sentencing judge had adequate regard to the applicant’s antecedents, age and the risk of serious harm to members of the community, as is required by s 163(4) of the Penalties and Sentences Act 1992 CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CHARACTER OF OFFENCE – GENERALLY – whether the sentencing judge adhered to the common law principle that an indefinite sentence should only be exercised in exceptional cases CRIMINAL LAW – EVIDENCE – GENERALLY – where three psychiatrists prepared reports and gave evidence at the sentence proceedings –whether the sentencing judge erred in preferring the evidence of certain psychiatrists CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – FACTUAL BASIS FOR SENTENCE – PROOF AND EVIDENCE – GENERALLY – whether certain findings made by the sentencing judge were supported by the evidence – whether such errors affected the exercise of discretion under s 163 – whether an indefinite sentence was warranted in the circumstances Penalties and Sentences Act 1992 (Qld), s 163(3), s 163(4), s 168, s 169, s 170 Chester v R (1988) 165 CLR 611, considered Narrier v R (2000) 111 A Crim R 405, considered R v Moffatt [1998] 2 VR 229, considered Thompson v R (1999) 73 ALJR 1319, considered
COUNSEL:	P E Smith for the applicant A J Rafter SC for the respondent
SOLICITORS:	Fisher & Company for the applicant Director of Public Prosecutions (Queensland) for the respondent