R v Burdon; ex parte

Case [2005] QCA 147

SUPREME COURT OF QUEENSLAND

CITATION:

R v Burdon; ex parte A-G (Qld) [2005] QCA 147

PARTIES:

R
v
BURDON, Frederick John
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 85 of 2005
DC No 2753 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:


10 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

10 May 2005

JUDGES:

McMurdo P, Muir and Wilson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OTHER OFFENCES – where applicant convicted after pleas of guilty to one count of using the internet to expose a child he believed to be under 16 years to indecent matter and one count of using the internet to procure a child he believed to be under 16 years to engage in a sexual act – where sentenced to 18 months imprisonment wholly suspended with an operational period of two years and ordered to perform 240 hours community service – where applicant 50 years old – where thought he was communicating with a 13 year old girl – where sexually explicit language used – where sent sexually explicit photograph of himself – where made arrangement to meet in person – where plea of guilty at early stage – where active member of community – where no previous convictions – where voluntarily sought psychiatric counselling – where publicly shamed in local community – where low risk of re-offending – where no real child recipient of communications – whether sentence manifestly inadequate

Criminal Code 1899 (Qld), s 218A

R v Campbell [2004] QCA 342; CA No 287 of 2004, 20 September 2004, considered
R v Kennings [2004] QCA 162; CA No 35 of 2004, 14 May 2004, considered
Ryan v The Queen (2001) 206 CLR 267, considered

COUNSEL:

M J Copley for the appellant
M J Byrne QC for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Gilshenan & Luton for the respondent

THE PRESIDENT: Frederick John Burdon pleaded guilty on 8 March 2005 in the District Court at Brisbane to two offences against s 218A Criminal Code that he used the internet to expose a person he believed was under the age of 16 to an indecent matter and that he used electronic communication to procure a person he believed was under the age of 16 to engage in a sexual act.

He was ordered to perform 240 hours community service on the first count and sentenced to 18 months imprisonment wholly suspended with an operational period of two years on the second.

The appellant, the Attorney-General of Queensland, contends that the sentence was manifestly inadequate in that some period of actual imprisonment should…

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Details
AGLC
R v Burdon; ex parte Attorney-General [2005] QCA 147
Case
[2005] QCA 147
Decision Date

CaseChat Overview and Summary

In the case of R v Burdon, the applicant was convicted of two offences involving the use of the internet to expose a child he believed to be under 16 years of age to indecent matter and to procure the child to engage in a sexual act. The applicant, aged 50, had pleaded guilty to both charges and was sentenced to 18 months imprisonment, which was wholly suspended for two years, and was also ordered to perform 240 hours of community service. The applicant had believed he was communicating with a 13-year-old girl and had used sexually explicit language and sent a photograph of himself. He had also made arrangements to meet the girl in person. The sentencing court took into account the applicant's age, his plea of guilty at an early stage, his active involvement in the community, his lack of previous convictions, and his voluntary engagement in psychiatric counselling. However, the court also considered the impact of the applicant's actions on the local community, where he had been publicly shamed, and the low risk of re-offending due to the absence of a real child recipient of the communications.

The legal issues before the court were whether the sentence imposed by the trial court was manifestly inadequate and whether the applicant's sentence should be increased. The applicant argued that the sentence was manifestly inadequate, considering the nature and circumstances of the offences and the impact on the community. The court was required to determine whether the trial judge had erred in considering the sentence to be appropriate and whether the sentence was manifestly inadequate in light of the relevant principles and factors. The court also had to consider the principles of proportionality and the need for deterrence and denunciation in the context of sentencing for such offences.

The court found that the trial judge had correctly considered the relevant principles and factors in determining the sentence. The court noted that the applicant had engaged in serious offending behaviour, involving the use of the internet to expose a child to indecent matter and to procure the child to engage in a sexual act. The court recognised the impact of the applicant's actions on the local community and the need for deterrence and denunciation. However, the court also considered the applicant's age, his plea of guilty at an early stage, his active involvement in the community, his lack of previous convictions, and his voluntary engagement in psychiatric counselling. The court concluded that the sentence imposed was not manifestly inadequate and that the trial judge had correctly exercised his discretion in determining the appropriate sentence. The court dismissed the appeal against sentence.

Orders

Orders of the court

Appeal against sentence dismissed

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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