R v. Carmichael & Armbruster - [2009] QCA 41

SUPREME COURT OF QUEENSLAND

CITATION:

R v Carmichael & Armbruster [2009] QCA 41

PARTIES:

R
v
CARMICHAEL, Benjamin John
(applicant)

R
v
ARMBRUSTER, Wade Adrian
(applicant/appellant)

FILE NO/S:

CA No 298 of 2008
CA No 297 of 2008
DC No 166 of 2008
DC No 167 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Applications

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

6 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2009

JUDGES:

Muir JA, Atkinson and P Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. That in relation to the applicant Carmichael, the application for leave to appeal be dismissed.

2. That in relation to the applicant Armbruster, the application for leave to appeal and the appeal is allowed. The sentences for counts 2 and 3 be set aside and that terms of imprisonment of 12 months suspended after six with an operational period of three years be substituted.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the first applicant was sentenced to a two year and a 12 month term of imprisonment, served concurrently, suspended after 14 months for several offences involving children under 16 years – where the second applicant was sentenced to a two year and an 18 month term of imprisonment, served concurrently, suspended after eight months for two like offences – whether there was parity in the sentences imposed – whether sentences were manifestly excessive

Criminal Code 1899 (Qld), s 210
Penalties and Sentences Act 1992 (Qld), s 144

Postiglione v The Queen (1997) 189 CLR 295, [1997] HCA 26, cited
R v Skinner;ex parte Attorney-General [2001] 1 Qd R 322, [1999] QCA 521 cited
R v Waters [1998] 2 Qd R 442, [1997] QCA 439, cited

COUNSEL:

C W Heaton for the applicants/appellant
G J Cummings for the respondent

SOLICITORS:

Legal Aid Queensland for the applicants/appellant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: Introduction

The applicant, Benjamin John Carmichael pleaded guilty in the District Court to the following offences:

Counts 1 to 6 inclusive Unlawful carnal knowledge of a girl under 16 years;

Counts 7 & 8 Unlawful and indecent dealing with a girl under 16 years;

Count 9 Unlawful and indecent dealing with a girl under 16 years;

Count 10 Without legitimate reason, wilfully exposing a child under 16 years to indecent printed matter;

Count 11 Knowingly making child exploitation material.

He was sentenced as follows:

Counts 1 to 6 2 years imprisonment;

Counts 7, 8, 9, 10 & 11 12 months imprisonment.

All sentences were ordered to be served concurrently and were cumulative on the reactivated term of a nine months sentence imposed on 16 November 2006. The sentences were suspended after 14 months from the commencement of Carmichael's imprisonment with an operational period of three years.

The applicant, Wade Adrian Armbruster, was…

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. Carmichael & Armbruster

Details

AGLC: R v Carmichael & Armbruster [2009] QCA 41
Case: [2009] QCA 41
Decision Date: 6 March 2009

CaseChat Overview and Summary

The applicants in this case, Carmichael and Armbruster, appealed against their sentences, which were imposed for offences involving children under 16 years. The applicants were convicted of various charges including sexual offences against children, with Carmichael receiving a two-year term and an additional 12-month term, both served concurrently and suspended after 14 months. Armbruster was sentenced to a two-year term and an 18-month term, also served concurrently and suspended after eight months. The applicants sought leave to appeal against the sentences, arguing that they were manifestly excessive and that there was a lack of parity in the sentences imposed.

The primary legal issues the court had to address were whether the sentences were manifestly excessive or inadequate and whether there was parity between the sentences imposed on the two applicants. The court examined the principles of sentencing, focusing on the nature and gravity of the offences, the culpability of the offenders, and the necessity of deterrence and rehabilitation. The applicants argued that the sentences were excessively harsh and did not reflect the mitigating factors, such as their remorse and the circumstances leading to the offences. They also contended that the disparity in the sentences, with Armbruster receiving a longer suspension period than Carmichael, indicated a lack of parity.

In dismissing the appeal for Carmichael, the court found that the sentence was appropriate given the gravity of the offences and the need to protect the community. The court noted that Carmichael's sentence, suspended after 14 months, was within the range of sentences typically imposed for such crimes and did not constitute a manifestly excessive punishment. However, in relation to Armbruster, the court allowed the appeal and set aside the sentences for counts 2 and 3. The court found that the original sentences were indeed excessive and did not reflect a balanced approach to sentencing. The court substituted the sentences with terms of imprisonment of 12 months suspended after six months, with an operational period of three years, finding this more proportionate to the nature of the offences and the applicants' circumstances.

The court's final orders were that the application for leave to appeal for Carmichael be dismissed, and for Armbruster, the application for leave to appeal and the appeal be allowed. The sentences for counts 2 and 3 for Armbruster were set aside, and new sentences were substituted as outlined above.

Orders

Orders of the court

1. That in relation to the applicant Carmichael, the application for leave to appeal be dismissed.

2. That in relation to the applicant Armbruster, the application for leave to appeal and the appeal is allowed. The sentences for counts 2 and 3 be set aside and that terms of imprisonment of 12 months suspended after six with an operational period of three years be substituted.

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 Carmichael & Armbruster [2009] QCA 41
PARTIES:	R v CARMICHAEL, Benjamin John (applicant) R v ARMBRUSTER, Wade Adrian (applicant/appellant)
FILE NO/S:	CA No 298 of 2008 CA No 297 of 2008 DC No 166 of 2008 DC No 167 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Applications
ORIGINATING COURT:	District Court at Mackay
DELIVERED ON:	6 March 2009
DELIVERED AT:	Brisbane
HEARING DATE:	11 February 2009
JUDGES:	Muir JA, Atkinson and P Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. That in relation to the applicant Carmichael, the application for leave to appeal be dismissed. 2. That in relation to the applicant Armbruster, the application for leave to appeal and the appeal is allowed. The sentences for counts 2 and 3 be set aside and that terms of imprisonment of 12 months suspended after six with an operational period of three years be substituted.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the first applicant was sentenced to a two year and a 12 month term of imprisonment, served concurrently, suspended after 14 months for several offences involving children under 16 years – where the second applicant was sentenced to a two year and an 18 month term of imprisonment, served concurrently, suspended after eight months for two like offences – whether there was parity in the sentences imposed – whether sentences were manifestly excessive Criminal Code 1899 (Qld), s 210 Penalties and Sentences Act 1992 (Qld), s 144 Postiglione v The Queen (1997) 189 CLR 295, [1997] HCA 26, cited R v Skinner;ex parte Attorney-General [2001] 1 Qd R 322, [1999] QCA 521 cited R v Waters [1998] 2 Qd R 442, [1997] QCA 439, cited
COUNSEL:	C W Heaton for the applicants/appellant G J Cummings for the respondent
SOLICITORS:	Legal Aid Queensland for the applicants/appellant Director of Public Prosecutions (Queensland) for the respondent