R v Butler - [2006] QCA 223

SUPREME COURT OF QUEENSLAND

CITATION:

R v Butler [2006] QCA 223

PARTIES:

R
v
BUTLER, Cheyne Adam
(applicant)

FILE NO/S:

CA No 122 of 2006
DC No 3230 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

9 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

9 June 2006

JUDGES:

McMurdo P, Holmes JA and Mackenzie J
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 is refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSON – APPLICATIONS TO REDUCE SENTENCE – where applicant pleaded guilty to offences of indecent dealing, assault and trespassing on school grounds – where indecent dealing and assault offences occurred in public park – where offences did not involve actual touching of genitals – where trespass offences involved applicant being found inside cubicle in female toilets at primary school – where applicant submitted sentencing judge failed to take into account the fact that offences did not involve touching of genitals and no exposure by applicant – where applicant claimed that custodial sentence would not allow adequate opportunity for treatment – whether the sentence imposed was manifestly excessive

COUNSEL:

C A Cuthbert for the applicant
R G Martin for the respondent

SOLICITORS:

Howden Saggers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MACKENZIE J: The applicant pleaded guilty to two offences on indictment, indecently dealing with an eight year old girl in early 2004 and unlawfully assaulting an eight year old girl in 2005. There were also two summary offences of trespass relating to the applicant being on school grounds of the same school on the day of count 2 and the next day.

On count 1 he was convicted and sentenced to four months imprisonment suspended after two months and on count 2 convicted and admitted to probation for two years. He was convicted but not further punished for the two offences of trespass.

On the first occasion the child, her younger sister and her mother were picnicking in a suburban park. With their mother's approval the two girls went to a toilet in the park. The applicant was known to the mother through school connections and they had acknowledged each other earlier that afternoon in the park. He was probably not known to the child. He had his dogs with him in the park.

When the girls came out of the toilet he engaged them in conversation and allowed them to pat the dogs. He then knelt down in front of the eight year old girl and asked her to lift up her skirt. She initially refused. He then attempted to pull it up himself and she reluctantly lifted her skirt.

The applicant then placed his hands on her hips, half on the skirt and half on her underwear. He then moved his…

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 Butler

Details

AGLC: R v Butler [2006] QCA 223
Case: [2006] QCA 223
Decision Date: 9 June 2006

CaseChat Overview and Summary

The matter of R v Butler involved an appeal against sentence by the convicted person, who had pleaded guilty to offences of indecent dealing, assault and trespassing on school grounds. The indecent dealing and assault offences occurred in a public park, while the trespass offences involved the applicant being found inside a cubicle in the female toilets at a primary school. The applicant argued that the sentencing judge had failed to consider that the offences did not involve actual touching of genitals and there was no exposure by the applicant. The applicant also claimed that a custodial sentence would not provide an adequate opportunity for treatment, and sought to argue that the sentence imposed was manifestly excessive.

The legal issues before the court were whether the sentencing judge had failed to take into account the fact that the offences did not involve actual touching of genitals and no exposure by the applicant, and whether the sentence imposed was manifestly excessive. The applicant submitted that the sentencing judge had failed to properly consider the mitigating factors, and that the sentence imposed was manifestly excessive in light of the mitigating factors.

The court found that the sentencing judge had considered all relevant factors in imposing the sentence, and had not failed to take into account the mitigating factors submitted by the applicant. The court also found that the sentence imposed was not manifestly excessive, and that the applicant had not demonstrated that the sentence was unjust or disproportionate. The court refused the application for leave to appeal against sentence.

The court's reasoning and outcome demonstrate the importance of ensuring that all relevant factors are considered in sentencing, and that the sentence imposed is not manifestly excessive. The court found that the sentencing judge had properly considered all relevant factors and that the sentence imposed was not manifestly excessive. The refusal of the application for leave to appeal against sentence confirms the importance of ensuring that the sentence imposed is just and proportionate to the offence committed.

Orders

Orders of the court

Application for leave to appeal against sentence is 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 Butler [2006] QCA 223
PARTIES:	R v BUTLER, Cheyne Adam (applicant)
FILE NO/S:	CA No 122 of 2006 DC No 3230 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	9 June 2006
DELIVERED AT:	Brisbane
HEARING DATE:	9 June 2006
JUDGES:	McMurdo P, Holmes JA and Mackenzie J 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 is refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSON – APPLICATIONS TO REDUCE SENTENCE – where applicant pleaded guilty to offences of indecent dealing, assault and trespassing on school grounds – where indecent dealing and assault offences occurred in public park – where offences did not involve actual touching of genitals – where trespass offences involved applicant being found inside cubicle in female toilets at primary school – where applicant submitted sentencing judge failed to take into account the fact that offences did not involve touching of genitals and no exposure by applicant – where applicant claimed that custodial sentence would not allow adequate opportunity for treatment – whether the sentence imposed was manifestly excessive
COUNSEL:	C A Cuthbert for the applicant R G Martin for the respondent
SOLICITORS:	Howden Saggers for the applicant Director of Public Prosecutions (Queensland) for the respondent