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R v Carson

R v Carson

Case [2008] QCA 268 5 September 2008

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Carson [2008] QCA 268

PARTIES:

R
v
CARSON, Laurence James
(applicant/appellant)

FILE NO/S:

CA No 63 of 2008
DC No 354 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

5 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

30 May 2008

JUDGES:

Fraser JA, Philippides and Daubney JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Leave to appeal against sentence granted

2. Sentence imposed at first instance set aside to the extent of setting parole eligibility at 17 April 2009, after 14 months served

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – applicant convicted on guilty pleas to one count of possessing child exploitation material and one count of distributing child exploitation material – applicant used peer-to-peer software which allowed others to access child exploitation material on his computer – applicant sentenced to concurrent sentences of 12 months imprisonment for possession count, and three and a half years for distribution count, with a parole eligibility date set at 18 months – whether sentence manifestly excessive

Criminal Code 1899 (Qld), s 228C, s 228D
Penalties and Sentences Act 1992 (Qld), s 9(2)

R v Burns (Unreported, District Court of Queensland, Dearden J, 26 February 2007), cited
R v Chambers (Unreported, District Court of Queensland, Dick J, 18 January 2008), cited
R v Cook; ex parte A-G (Qld); R v Cook; ex parte Commonwealth DPP[2004] QCA 469, cited
R v Cuthbert (Unreported, District Court of Queensland, Dodds J, 14 February 2008), cited
R v Finch; ex parte A-G (Qld) [2006] QCA 60, cited
R v GAE; ex parte A-G (Qld) [2008] QCA 128, cited
R v Havenaar (Unreported, District Court of Queensland, McLauchlan J, 6 March 2007), cited
R v Heiniger (Unreported, District Court of Queensland, Wolfe CJ, 21 November 2006), cited
R v Jesson (Unreported, Supreme Court of Queensland, Wilson J, 28 February 2005), cited
R v Jones (1999) 108 A Crim R 50, cited
R v Plunkett [2006] QCA 182, cited
R v Reid; ex parte A-G (Qld)[2000] QCA 218, cited
R v Salsone; ex parte A-G (Qld) [2008] QCA 220, followed
R v Searle (Unreported, Supreme Court of Queensland, Lyons J, 15 June 2007), cited
R v Tarnawskyj (Unreported, District Court of New South Wales, Coolahan J, 14 June 2007), cited
R v Wharley [2007] QCA 295, cited

COUNSEL:

C W Heaton for the applicant/appellant
R G Martin SC for the respondent

SOLICITORS:

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

FRASER JA: I agree with the orders proposed by Philippides J and her Honour’s reasons for those orders.

PHILIPPIDES J: On 18 February 2008, the applicant…

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 Carson

Details

AGLC: R v Carson [2008] QCA 268
Case: [2008] QCA 268
Decision Date: 5 September 2008

CaseChat Overview and Summary

In the matter of the appeal against sentence, the applicant, Carson, appealed against the sentence imposed by the court following his conviction on two counts: possession of child exploitation material and distribution of child exploitation material. The court was required to determine whether the sentence was manifestly excessive. Carson had used peer-to-peer software, which allowed others to access the child exploitation material on his computer. The trial judge imposed concurrent sentences of 12 months imprisonment for the possession count and three and a half years for the distribution count, with parole eligibility set at 18 months.

The primary legal issue before the court was whether the sentence was manifestly excessive. Carson argued that the sentence was too severe given his age, background, and the fact that he had no previous convictions. The prosecution maintained that the sentence was appropriate given the seriousness of the offences and the need to protect the community. The court considered various factors, including the nature and circumstances of the offences, Carson's background, and the need for general and specific deterrence. The court found that while the offences were serious, the sentence was excessive due to the setting of parole eligibility at 18 months. The court concluded that a more appropriate parole eligibility date would be 17 April 2009, after 14 months served.

The court granted leave to appeal against the sentence, set aside the sentence imposed at first instance, and set parole eligibility at 17 April 2009, after 14 months served. The court found that the original sentence was manifestly excessive, and the revised sentence better reflected the seriousness of the offences while taking into account Carson's background and circumstances. The court's decision highlights the importance of proportionality in sentencing and the need for courts to carefully consider the individual circumstances of each offender when determining an appropriate sentence.

Orders

Orders of the court

1. Leave to appeal against sentence granted

2. Sentence imposed at first instance set aside to the extent of setting parole eligibility at 17 April 2009, after 14 months served

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 Carson [2008] QCA 268

Most Recent Citation

R v NK [2008] QCA 403

Cases citing this decision · 9 of 9 shown

R v Hampson
[2011] QCA 132 Para 1

…ctual sexual abuse of any of 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 Dennison
[2011] NSWCCA 114 Para 32

…iation and deterrence (both general and personal) are particularly powerful considerations in sentencing for child pornography offences. ( R v Carson [2008] QCA 268 at [32]; R v Plunkett [2006] QCA 182 at [6]; R v Wharley [2007] QCA 295 at [17].)…
R v MBM
[2011] QCA 100 Para 1

…held to do so.[17] [14] R v Plunkett [2006] QCA 182; R v Richardson; ex parte A-G [2007] QCA 294; R v Riley [2007] QCA 391; R v Carson [2008] QCA 268; and R v Vantoosten [2009] QCA 54. [15]AR 12-13. [16][2009] QCA 128. [17]At [46] per Daubney J with whom the President and Chesterman JA agreed.…
Attorney-General for the State of Queensland v SBD
[2010] QSC 104 Para 1

…adopted in a sentencing context. Recent examples to which Counsel for the applicant referred me are R v Carson[5]; R v Mara[6]; and R v Sykes[7]. [5][2008] QCA 268 at [28]. [6][2009] QCA 208 at [17]. [7][2009] QCA 267 at [19].…
DPP v Latham
[2009] TASSC 101 Para 1

…in which the production was of the type involved here. It seems to have occurred in one case but was not the subject of any separate charges: R v NK [2008] QCA 268. Four appellate cases[2] have involved the production of child pornography, with two of those involving the distribution of it. All four cases involv…
R v Pham
[2009] QCA 242 Para 1

…which dealt with appeals against sentences imposed for distributing CE material, R v Salsone; ex parte Attorney-General [2008] QCA 220 and R v Carson [2008] QCA 268.…
R v Carlton
[2009] QCA 241 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 Mara
[2009] QCA 208 Para 1

…n and deterrence (both general and personal) are particularly powerful considerations in sentencing for child pornography offences.[3] [3] R v Carson [2008] QCA 268 at [32]; R v Plunkett [2006] QCA 182 at [6]; R v Wharley [2007] QCA 295 at [17].…
R v NK
[2008] QCA 403 Para 1

…denunciation for offences of that kind: R v Plunkett [2006] QCA 182 at 3, 6; R v Wharley (2007) 175 A Crim R 253; [2007] QCA 295 at [17]; R v Carson [2008] QCA 268 at [32]. As was said in R v Jones (1999) 108 A Crim R 50 at 52; [1999] WASCA 24:…

View all 9 citing cases →

Cases cited in this decision · 7 of 7 shown

R v Salsone; ex parte A-G (Qld)
[2008] QCA 220 Para 1

…inal Code (Child Pornography and Abuse) Amendment Act 2005 (Qld) and came into operation on 5 April 2005. As noted in R v Salsone; ex parte A-G (Qld) [2008] QCA 220 at [29], the greater maximum penalty imposed for offences against s 228C, compared with s 228D, evinces an intention on the part of the legislature t…
R v. GAE; ex parte A-G (Qld)
[2008] QCA 128 Para 1

…exploitation material under the Criminal Code : see R v Plunkett [2006] QCA 182 at 7, R v Wharley [2007] QCA 295 at [16], R v GAE; ex parte A-G (Qld) [2008] QCA 128 at [20].…
R v Wharley
[2007] QCA 295 Para 1

…concerning the possession and distribution of child exploitation material under the Criminal Code : see R v Plunkett [2006] QCA 182 at 7, R v Wharley [2007] QCA 295 at [16], R v GAE; ex parte A-G (Qld) [2008] QCA 128 at [20].…
R v Plunkett
[2006] QCA 182 Para 1

…xual exploitation, corruption and moral degradation of children: R v Reid; ex parte Attorney-General of Queensland [2000] QCA 218, at 8; R v Plunkett [2006] QCA 182 at 3. Indeed, the policy objectives for the new provisions were identified as being “to respond to the growing incidence of child pornography” by ins…
R v Finch; ex parte
[2006] QCA 60 Para 1

…he penalties that applied under the legislation it replaced and which had been criticised as being inadequate: R v Finch; ex parte A-G (Qld ) [2006] QCA 60 at [15]; R v Plunkett [2006] QCA 182 at 1.…
R v Cook; ex parte A-G (Qld); R v Cook; ex parte Commonwealth DPP
[2004] QCA 469 Para 1

…Kennedy J’s remarks were endorsed in R v Cook; ex parte A-G (Qld); R v Cook; ex parte Commonwealth DPP [2004] QCA 469, which concerned the importation of child pornography in contravention of the Customs Act 1901 (Cth). McMurdo P said at [21]:…
R v Reid; ex parte Attorney-General of Queensland
[2000] QCA 218 Para 1

…he feeding of the market for the sexual exploitation, corruption and moral degradation of children: R v Reid; ex parte Attorney-General of Queensland [2000] QCA 218, at 8; R v Plunkett [2006] QCA 182 at 3. Indeed, the policy objectives for the new provisions were identified as being “to respond to the growing inc…

Legislation cited in this decision · 4

Penalties and Sentences Act 1992 (Qld)
2, 9(2) 3 mentions (from Para 1)
Criminal Code (Child Pornography and Abuse) Amendment Act 2005 (Qld)
1 mention (from Para 1)
Criminal Code Act 1995 (Cth)
1 mention (from Para 1)
Customs Act 1901 (Cth)
1 mention (from Para 1)

CITATION:	R v Carson [2008] QCA 268
PARTIES:	R v CARSON, Laurence James (applicant/appellant)
FILE NO/S:	CA No 63 of 2008 DC No 354 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	5 September 2008
DELIVERED AT:	Brisbane
HEARING DATE:	30 May 2008
JUDGES:	Fraser JA, Philippides and Daubney JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Leave to appeal against sentence granted 2. Sentence imposed at first instance set aside to the extent of setting parole eligibility at 17 April 2009, after 14 months served
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – applicant convicted on guilty pleas to one count of possessing child exploitation material and one count of distributing child exploitation material – applicant used peer-to-peer software which allowed others to access child exploitation material on his computer – applicant sentenced to concurrent sentences of 12 months imprisonment for possession count, and three and a half years for distribution count, with a parole eligibility date set at 18 months – whether sentence manifestly excessive Criminal Code 1899 (Qld), s 228C, s 228D Penalties and Sentences Act 1992 (Qld), s 9(2) R v Burns (Unreported, District Court of Queensland, Dearden J, 26 February 2007), cited R v Chambers (Unreported, District Court of Queensland, Dick J, 18 January 2008), cited R v Cook; ex parte A-G (Qld); R v Cook; ex parte Commonwealth DPP[2004] QCA 469, cited R v Cuthbert (Unreported, District Court of Queensland, Dodds J, 14 February 2008), cited R v Finch; ex parte A-G (Qld) [2006] QCA 60, cited R v GAE; ex parte A-G (Qld) [2008] QCA 128, cited R v Havenaar (Unreported, District Court of Queensland, McLauchlan J, 6 March 2007), cited R v Heiniger (Unreported, District Court of Queensland, Wolfe CJ, 21 November 2006), cited R v Jesson (Unreported, Supreme Court of Queensland, Wilson J, 28 February 2005), cited R v Jones (1999) 108 A Crim R 50, cited R v Plunkett [2006] QCA 182, cited R v Reid; ex parte A-G (Qld)[2000] QCA 218, cited R v Salsone; ex parte A-G (Qld) [2008] QCA 220, followed R v Searle (Unreported, Supreme Court of Queensland, Lyons J, 15 June 2007), cited R v Tarnawskyj (Unreported, District Court of New South Wales, Coolahan J, 14 June 2007), cited R v Wharley [2007] QCA 295, cited
COUNSEL:	C W Heaton for the applicant/appellant R G Martin SC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent