R v Carlton

Case [2009] QCA 241


SUPREME COURT OF QUEENSLAND

CITATION:

R v Carlton [2009] QCA 241

PARTIES:

R
v
CARLTON, Luke Brett
(applicant)

FILE NO/S:

CA No 340 of 2008
DC No 1073 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

28 August 2009

DELIVERED AT:

Brisbane

HEARING DATE:

1 April 2009

JUDGE:

McMurdo P, Chesterman JA and Mullins J
Separate reasons for judgment of each member of the Court, Chesterman JA and Mullins J concurring as to the order made, McMurdo P dissenting 

ORDER:

Leave to appeal against sentence is refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the applicant pleaded guilty to four counts of distributing child exploitation material and one count of possessing child exploitation material – the applicant was sentenced to three years imprisonment with parole eligibility fixed after he had served 12 months – whether sentence was manifestly excessive

STATUTES – ACTS OF PARLIAMENT – OPERATION AND EFFECT OF STATUTES – RETROSPECTIVE OPERATION – the relevant sentencing provisions changed between the time the offence was committed and the time of sentencing – learned sentencing judge applied sentencing provisions as at the time of sentencing – whether the amendments altered substantive or procedural provisions – whether amendments had retrospective operation

Acts Interpretation Act 1954 (Qld), s 20C(3)
Criminal Code and Other Acts Amendment Act 2008 (Qld)
Criminal Code 1899 (Qld), s 11(2)
Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s 9(2)(b), s 9(3), s 9(4), s 9(6A), s 9(6B), s 211
Sexual Offences (Protection of Children) Amendment Act 2003 (Qld)
United Nations International Covenant on Civil and Political Rights, Article 15.1

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, considered
Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7, applied
R v Breeze (1999) 106 A Crim R 441; [1999] QCA 303, cited
R v Carson [2008] QCA 268, considered
R v Flew[2008] QCA 290, cited
R v Inkerman & Attorney-General of Queensland [1997] QCA 316, considered
R v Maclay (1990) 19 NSWLR 112; (1990) 46 A Crim R 340, cited
R v Mallard & White[1998] QCA 59, considered
R v Mason and Saunders [1998] 2 Qd R 186; [1997] QCA 421, distinguished
R v Pora [2001] 2 NZLR 37; [2000] NZCA 403, cited
R v Robinson; ex parte Attorney-General of Queensland [2000] 1 Qd R 670; [1998] QCA 107, cited
R v S[1999] QCA 311, followed
R v Salsone; ex parte A-G (Qld)[2008] QCA 220, considered
R v Truong [2000] 1 Qd R 663; [1999] QCA 21, followed
R v Wharley (2007) 175 A Crim R 253; [2007] QCA 295, cited
Rodway v The Queen (1990) 169 CLR 515; [1990] HCA 19, applied
Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74

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Details
AGLC
R v Carlton [2009] QCA 241
Case
[2009] QCA 241
Decision Date

CaseChat Overview and Summary

The applicant in this case pleaded guilty to four counts of distributing child exploitation material and one count of possessing child exploitation material. The sentencing judge imposed a sentence of three years imprisonment with parole eligibility fixed after the applicant had served 12 months. The applicant appealed against the sentence, contending that it was manifestly excessive. The central issue before the court was whether the sentence imposed was manifestly excessive, given the seriousness of the crimes committed. Additionally, the court had to determine the applicability of subsequent legislative changes to the sentencing provisions in relation to the crimes committed.

The court considered the principles governing appeals against sentence, particularly focusing on the discretion of the sentencing judge and the standard for determining whether a sentence is manifestly excessive. The court held that the sentencing judge had exercised their discretion appropriately, taking into account the aggravating and mitigating factors of the case. The court found that the sentence was not manifestly excessive. Furthermore, the court examined the legislative changes that occurred between the commission of the offences and the sentencing. The court concluded that the amendments did not alter substantive or procedural provisions and did not have retrospective operation. Therefore, the sentencing provisions applicable at the time of sentencing were correctly applied.

Given the above, the court determined that the applicant's appeal against sentence was without merit. Consequently, the court refused the leave to appeal against the sentence. The original sentence of three years imprisonment with parole eligibility after 12 months remains in place.

Orders

Orders of the court

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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