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R v Carlton

R v Carlton

Case [2009] QCA 241 28 August 2009

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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

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 Carlton

Details

AGLC: R v Carlton [2009] QCA 241
Case: [2009] QCA 241
Decision Date: 28 August 2009

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

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 Carlton [2009] QCA 241

Most Recent Citation

R v Pham [2009] QCA 242

Cases citing this decision · 11 of 11 shown

R v DT
[2023] QChC 8 Para 39

…ion was procedural only as it merely reordered the priority of matters to be considered in the exercise of the discretionary power of sentencing. [13][2009] QCA 241; [2010] 2 Qd R 340 at [88].…
R v JAA
[2018] QCA 365 Para 4

…supported by the definition of “offence” under the Criminal Code. [26]This is given some support by Keane JA in R v Pham [2009] QCA 241 at [5]. [27]As to the question of whether the circumstance of aggravation was distinct from the offence with which the accused is charged. “Circumstance of aggravation” is defin…
R v HBT
[2018] QCA 227 Para 21

…. [110][1998] 2 Qd R 186; 1997] QCA 421. [111][2000] 1 Qd R 663; [1999] QCA 21. [112](2009) 197 A Crim R 246; [2009] QCA 242. [113][2010] 2 Qd R 340; [2009] QCA 241. [114](2010) 206 A Crim R 454; [2010] NTCA 8.…
R v Hutchinson
[2018] QCA 29

…v Baggott [2000] QCA 153, considered R v Breeze (1999) 106 A Crim R 441; [1999] QCA 303, cited R v Carlton [2010] 2 Qd R 340, [2009] QCA 241, followed R v Harold [2011] QCA 99, considered R v Koster (2012) 226 A Crim R 247; [2012] QCA 302, distinguished R v Mason and Saunders [1998] 2 Qd R 186; [1997] QCA 421, ci…
Taylor & Sons Pty Ltd v Department of Justice and Attorney-General
[2017] QCAT 268 Para 3

…rs and liabilities, and contains the actual rules and principles administered by courts, both under statute law and common law. [10] [10] R v Carlton [2009] QCA 241, [35].…
R v CLN
[2016] QDC 111 Para 1

…will return briefly to those explanatory notes in a moment. Following Breeze , the Court of Appeal had reason to comment on that case in R v Carlton [2009] QCA 241. In Carlton , the court was concerned with amendments to section 9 of the Penalties and Sentences Act 1992. The amendments being the introduction of…
R v Koster
[2012] QCA 302

…988] HCA 70, considered Olsen v Sims (2010) 28 NTLR 116, [2010] NTCA 8, considered R v Carlton [2010] 2 Qd R 340, [2009] QCA 241, considered R v Craig; ex parte A-G (Qld) [2002] QCA 414, considered R v Kay [1996] QCA 192, considered R v KP; ex parte A-G (Qld) [2006] QCA 301, considered R v Mason & Saunders [1998]…
R v Hampson
[2011] QCA 132 Para 1

…the children depicted. The offending here can, thus, be distinguished readily from the offending in R v Carson .[2] [2][2008] QCA 268; R v Carlton [2009] QCA 241; R v Pham [2009] QCA 242 and R v Salsone; ex parte A-G (Qld) [2008] QCA 220.…
R v Grehan
[2010] QCA 42 Para 1

…In R v Carlton [2009] QCA 241 the applicant pleaded guilty to four counts of distributing CE material and one count of possessing it. He was sentenced to three years’ imprisonment for the distribution and 12 months’ imprisonment for the possession. He had no prior convictions, was 23 and had prospects of rehabili…
R v Hardy
[2009] QDC 413

…(Qld) Penalties and Sentences Act 1992 (Qld), s 144, s 146, s 146A, s 147, s 148 R v Breeze (1999) 160 A Crim R 441, cited R v Carlton [2009] QCA 241, cited R v GT [2005] QCA 478, cited R v Hay [2009] QDC 333, applied…
R v Pham
[2009] QCA 242 Para 1

…The same point was recently argued before this Court, R v Carlton [2009] QCA 241 in which judgment is reserved. However, counsel for the applicant declined to advance the ground, even formally, pending delivery of judgment in Carlton . Mr Simpson’s concern was that should the application succeed on other grounds…

View all 11 citing cases →

Cases cited in this decision · 19 of 19 shown

R v Flew
[2008] QCA 290 Para 1

….[37] Flew did not consider the present arguments; it did not concern s 9(6A) and s 9(6B); and Mr Flew was not legally represented in his appeal. [37][2008] QCA 290 at [42].…
R v Carson
[2008] QCA 268 Para 1

…between 12 and 18 months was appropriate on count 3. He made no submissions as to whether there should be early parole eligibility or suspension. [1][2008] QCA 268.…
R v Salsone; ex parte A-G (Qld)
[2008] QCA 220 Para 1

…with Mr Whittingham, to continue in his paid employment and to have the additional protective and rehabilitative measure of community supervision. [2][2008] QCA 220.…
R v Wharley
[2007] QCA 295 Para 1

…The aggravating features of the present case, and the need for the imposition of a deterrent sentence, make the sentence imposed within range. [14][2007] QCA 295.…
Markarian v The Queen
[2005] HCA 25

…ted 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 [2…
R v Pora
[2000] NZCA 403

…98] 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 2…
R v S
[1999] QCA 311 Para 1

…e R v S , Mason and Saunders has often been followed by this Court: see, for example, R v Robinson; ex parte Attorney-General of Queensland .[42] [38][1999] QCA 311 at 12 [30]. [39][1999] QCA 311 at 25 [17]. [40][1999] QCA 311 at 12 [30]. [41][1999] QCA 311 at 15 [9]. [42][1998] QCA 107.…
R v Breeze
[1999] QCA 303 Para 1

…r comparable sentences were irrelevant as they were not imposed under the same "sentencing regime" as applied in Carlton's case. [8][1999] QCA 21. [9][1999] QCA 303. [10] R v Breeze [1999] QCA 303 at 6 [10], and 7 [10]. [11][1998] 2 Qd R 186. [12][1997] QCA 316. [13]As defined under Penalties and Sentences Act 19…
R v Truong
[1999] QCA 21 Para 1

…sidering that prior comparable sentences were irrelevant as they were not imposed under the same "sentencing regime" as applied in Carlton's case. [8][1999] QCA 21. [9][1999] QCA 303. [10] R v Breeze [1999] QCA 303 at 6 [10], and 7 [10]. [11][1998] 2 Qd R 186. [12][1997] QCA 316. [13]As defined under Penalties a…
Siganto v the Queen
[1998] HCA 74

…007] 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, cited Siganto v R (1997) 97 A Crim R 60, considered COUNSEL: A J Glynn for the applicant M B Lehane for the respondent SOLICITORS: Robertson O'Gorman for the applicant Director…
R v Robinson; ex parte Attorney-General of Queensland
[1998] QCA 107 Para 1

…al of Queensland .[42] [38][1999] QCA 311 at 12 [30]. [39][1999] QCA 311 at 25 [17]. [40][1999] QCA 311 at 12 [30]. [41][1999] QCA 311 at 15 [9]. [42][1998] QCA 107.…
R v Mallard and White
[1998] QCA 59

…f 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…
R v Mason and Saunders
[1997] QCA 421

…12; (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…
R v Johnson
[1997] QCA 21 Para 25

…[28][1997] QCA 21 at [25].…
Radenkovic v The Queen
[1990] HCA 54

…idered 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; […
Rodway v The Queen
[1990] HCA 19

…[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, cited Siganto v R (1997) 97 A Crim R 60, considered COUNSEL: A J Glynn for the applicant M B Lehane for the respo…
Maxwell v Murphy
[1957] HCA 7

…ts , 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 Queens…
R v Inkerman
[1997] QCA 316 Para 1

…" as applied in Carlton's case. [8][1999] QCA 21. [9][1999] QCA 303. [10] R v Breeze [1999] QCA 303 at 6 [10], and 7 [10]. [11][1998] 2 Qd R 186. [12][1997] QCA 316. [13]As defined under Penalties and Sentences Act 1992 (Qld), Pt 9A.…
[2001] 2 NZLR 37
[2001] 2 NZLR 37 Para 1

…n. This seems to have wrongly influenced the way in which the judge determined Carlton's sentence. [48](2005) 228 CLR 357 at [65]-[84], McHugh J. [49][2001] 2 NZLR 37. [50] Criminal Code 1899 (Qld), s 11(2). [51]Set out in these reasons at [16].…

Legislation cited in this decision · 9

Penalties and Sentences Act 1992 (Qld)
211, 9(2)(a), 9(3) 4 mentions (from Para 1)
Sexual Offences (Protection of Children) Amendment Act 2003 (Qld)
28, 29 3 mentions (from Para 1)
Acts Interpretation Act 1954 (Qld)
20C(3) 2 mentions (from Para 1)
Classification of Computer Games and Images Act 1995 (Qld)
28 1 mention (from Para 1)
Classification of Films Act 1991 (Qld)
41(3) 1 mention (from Para 1)
Classification of Publications Act 1991 (Qld)
12 1 mention (from Para 1)
Criminal Code and Other Acts Amendment Act 2008 (Qld)
1 mention (from Para 1)
Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 (Qld)
1 mention (from Para 1)
Sentencing Act 1995 (WA)
1 mention (from Para 1)

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