R v CBG

Case [2013] QCA 44 15 March 2013

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SUPREME COURT OF QUEENSLAND

CITATION:

R v CBG [2013] QCA 44

PARTIES:

R
v
CBG
(applicant)

FILE NO/S:

CA No 238 of 2012
DC No 273 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

15 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

26 February 2013

JUDGES:

White and Gotterson JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   The application for leave to appeal against sentence is granted;

2.   The appeal is allowed;

3.   The sentences are set aside;

4.   On each of counts 1 and 2 the applicant is sentenced to three years imprisonment to be served concurrently with a declaration that the 210 days in pre-sentence custody be declared time spent under the sentence; and

5.   The applicant's parole eligibility date is 15 March 2013.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the applicant pleaded guilty to two counts of indecent treatment of a child under 16, who was under 12 – the applicant was sentenced to six years imprisonment with a parole eligibility date after he had served two years – the applicant submitted that the offending in this case involved conduct at the lower end of the scale of seriousness – the applicant submitted that the sentencing judge was so influenced by the prior criminal history of the applicant as to have imposed a sentence which was disproportionate to the gravity of the offences – whether the sentence was manifestly excessive

Criminal Code 1899 (Qld), s 210(1)(a), s 210(3)
Criminal Law Amendment Act 1997 (Qld)
Penalties and Sentences Act 1992 (Qld), s 9, s 9(1), s 9(1)(a), s 9(2)(b), s 9(2)(c), s 9(2)(d), s 9(2)(e), s 9(2)(f), s 9(2)(g), s 9(2)(h), s 9(2)(i), s 9(2)(j), s 9(2)(r), s 9(5)(b), s 9(6), s 9(6)(a), s 9(8), s 9(9), s 11, s 11(a), s 13, s 159A, s 160D(3)
Sexual Offences (Protection of Children) Amendment Act 2003 (Qld)
Victims of Crime Assistance Act 2009 (Qld), s 15(5)(b)

Chester v The Queen (1988) 165 CLR 611; [1988] HCA 62, followed
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, cited
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, cited
R v Aston (No 2) [1991] 1 Qd R 375, applied
R v Brackenrig [2010] QCA 41, considered
R v Dwyer[2008] QCA 117, cited
R v Foy ex parte Attorney-General [2001] QCA 209, considered
R v R[2000] QCA 27, considered
R v SAQ[2002] QCA 221, considered
R v SBM [2009] QCA 115, considered
R v Schirmer[1995] QCA 242, considered
R v Wharton; ex parte A-G (Qld)[2009] QCA 396, considered
Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, applied

COUNSEL:

K…

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 CBG

Details

AGLC: R v CBG [2013] QCA 44
Case: [2013] QCA 44
Decision Date: 15 March 2013

CaseChat Overview and Summary

The case of R v CBG involved an appeal against the sentence imposed on the applicant who had pleaded guilty to two counts of indecent treatment of a child under 16, who was under 12 years old. The applicant was sentenced to six years imprisonment, with parole eligibility after serving two years. The applicant contested the severity of the sentence, arguing it was disproportionate given the nature of the offending and the influence of his prior criminal history.

The legal issues before the court centred on whether the sentence was manifestly excessive or inadequate. The applicant argued that the offending was at the lower end of the scale of seriousness and that the sentencing judge's consideration of the applicant’s prior criminal history had led to an inappropriate sentence. The court needed to determine if the sentence imposed was disproportionate to the gravity of the offences.

The court granted leave to appeal against the sentence, finding that the sentence was indeed manifestly excessive. It allowed the appeal, set aside the original sentences, and re-sentenced the applicant to three years imprisonment to be served concurrently on each count. The court also ordered that the 210 days spent in pre-sentence custody count towards the new sentence, and set the applicant's parole eligibility date to 15 March 2013.

Orders

Orders of the court

1. The application for leave to appeal against sentence is granted;

2. The appeal is allowed;

3. The sentences are set aside;

4. On each of counts 1 and 2 the applicant is sentenced to three years imprisonment to be served concurrently with a declaration that the 210 days in pre-sentence custody be declared time spent under the sentence; and

5. The applicant's parole eligibility date is 15 March 2013.

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.

Actions

Citations

R v CBG [2013] QCA 44

Most Recent Citation

R v MBZ [2014] QCA 18

Cases Citing This Decision

CDL v Commissioner of Police [2024] QCA 245
Citation 1 (Para 21)

…where the offending sits on the scale in relation to sentences imposed on other offenders which may be said to be broadly comparable. [19]See R v CBG [2013] QCA 44 at [45]-[50] and [89] per Atkinson J, with whom White and Gotterson JJA agreed.…
R v SDS [2022] QCA 106
Citation 2 (Para 28)

…ty of three to five years have been imposed for serious indecent treatment offences committed by offenders with a previous history of offending. [117][2013] QCA 44. [118][1995] QCA 242. [119][2000] QCA 27. [120][2002] QCA 221.…
R v WBN [2020] QCA 203
Citation 3 (Para 7)

…77] referred to by the prosecutor at sentence demonstrated that the sentence imposed was within the sound exercise of the sentencing discretion. [274][2013] QCA 44. [275][2013] QCA 186. [276][2013] QCA 374. [277][2012] QCA 74. Consideration…
R v Morrison [2018] QCA 288
Citation 4

…In R v CBG [2013] QCA 44, Atkinson J, with whom White and Gotterson JJA agreed, referred to and followed the statement of Cooper J in R v Aston (No 2) [1991] 1 Qd R 375, which in turn quoted from Veen v The Queen [No 2] (1988) 164 CLR 415 at 477 in these terms:…
Chapman v Queensland Police Service [2016] QDC 141
Citation 5 (Para 1)

…ances of the subject offence that must be the primary consideration: Veen v The Queen (No 2) (1988) 164 CLR 465, at pp 476, 477-478. See also R v CBG [2013] QCA 44; and R v McCusker [2015] QCA 179.…
Roll v QPS [2015] QDC 296
Citation 6 (Para 1)

…The effect that previous criminal convictions should have on a sentence has been considered in the Queensland Court of Appeal in R v CBG [2013] QCA 44 and R v McCusker [2015] QCA 179. In CBG Atkinson J, with whom White and Gotterson JJA agreed, outlined the relevant principles as follows:-…
R v McCusker [2015] QCA 179
Citation 7 (Para 1)

…sentence. The principles are clear and were discussed relatively recently by Atkinson J in this court (White and Gotterson JJA agreeing) in R v CBG [2013] QCA 44 at [30] – [32]:…
R v AAR [2014] QCA 20
Citation 8 (Para 1)

…A victim impact statement by the child’s mother spoke of the devastating effects of the offences on the child and his family. [16][2013] QCA 44. [17][1995] QCA 242. [18][2000] QCA 27. [19][2002] QCA 221.…
R v MBZ [2014] QCA 18
Citation 9 (Para 1)

…icles and suck them. He rubbed his penis around her vagina. The offender was sentenced to five years imprisonment. [3][2000] QCA 27; cited in R v CBG [2013] QCA 44 at [54]-[57].…

See all citing cases →

Cases Cited

Muldrock v The Queen [2011] HCA 39
Citation 1

…Act 2009 (Qld), s 15(5)(b) Chester v The Queen (1988) 165 CLR 611; [1988] HCA 62, followed Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, cited Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, cited R v Aston (No 2) [1991] 1 Qd R 375, applied R v Brackenrig [2010] QCA 41, considered R v Dwyer [2008…
R v Brackenrig [2010] QCA 41
Citation 2 (Para 1)

…h placed special focus in the sentencing process on the need to protect children from a risk of reoffending: see s 9(6) of the PSA and R v Brackenrig [2010] QCA 41 at [20] per McMurdo P.…
R v Wharton; ex parte A-G (Qld) [2009] QCA 396
Citation 3 (Para 1)

…ith a parole eligibility date fixed at one third of the sentence the applicant referred the court to R v Brackenrig ; R v Wharton; ex parte A-G (Qld) [2009] QCA 396; R v SAQ [2002] QCA 221 and R v Schirmer [1995] QCA 242.…
R v SBM [2009] QCA 115
Citation 4 (Para 1)

…ere serious, including digital penetration of the girls and fondling the boy's penis and allowing the boy to fondle his penis while he was naked. [18][2009] QCA 115.…
R v Dwyer [2008] QCA 117
Citation 5

…8) 194 CLR 610; [1998] HCA 57, cited R v Aston (No 2) [1991] 1 Qd R 375, applied R v Brackenrig [2010] QCA 41, considered R v Dwyer [2008] QCA 117, cited R v Foy ex parte Attorney-General [2001] QCA 209, considered R v R [2000] QCA 27, considered R v SAQ [2002] QCA 221, considered R v SBM [2009] QCA 115, consider…
R v BAY [2005] QCA 427
Citation 6 (Para 52)

…[9][2002] QCA 221 at p6; see also R v BAY [2005] QCA 427 at [52]-[53].…
R v SAQ [2002] QCA 221
Citation 7 (Para 1)

…date fixed at one third of the sentence the applicant referred the court to R v Brackenrig ; R v Wharton; ex parte A-G (Qld) [2009] QCA 396; R v SAQ [2002] QCA 221 and R v Schirmer [1995] QCA 242.…
R v Foy & A-G [2001] QCA 209
Citation 8 (Para 1)

…the sentence of six years imprisonment with a recommendation for parole after two years the respondent referred to R v Foy ex parte Attorney-General [2001] QCA 209; R v R [2000] QCA 27 and R v SAQ [2002] QCA 221. In each of those decisions the maximum penalty was 14 years imprisonment.…
R v R [2000] QCA 27
Citation 9 (Para 1)

…ears imprisonment with a recommendation for parole after two years the respondent referred to R v Foy ex parte Attorney-General [2001] QCA 209; R v R [2000] QCA 27 and R v SAQ [2002] QCA 221. In each of those decisions the maximum penalty was 14 years imprisonment.…
Pearce v The Queen [1998] HCA 57
Citation 10

…R 611; [1988] HCA 62, followed Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, cited Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, cited R v Aston (No 2) [1991] 1 Qd R 375, applied R v Brackenrig [2010] QCA 41, considered R v Dwyer [2008] QCA 117, cited R v Foy ex parte Attorney-General [2001] QC…
R v Schirmer [1995] QCA 242
Citation 11 (Para 1)

…sentence the applicant referred the court to R v Brackenrig ; R v Wharton; ex parte A-G (Qld) [2009] QCA 396; R v SAQ [2002] QCA 221 and R v Schirmer [1995] QCA 242.…
Khoury v Government Insurance Office (NSW) [1988] HCA 62
Citation 12

…f Children) Amendment Act 2003 (Qld) Victims of Crime Assistance Act 2009 (Qld), s 15(5)(b) Chester v The Queen (1988) 165 CLR 611; [1988] HCA 62, followed Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, cited Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, cited R v Aston (No 2) [1991] 1 Qd R 375,…
Veen v The Queen (No 2) [1988] HCA 14
Citation 13

…r [1995] QCA 242, considered R v Wharton; ex parte A-G (Qld) [2009] QCA 396, considered Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, applied COUNSEL: K Prskalo for the applicant B J Merrin for the respondent SOLICITORS: Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensl…
[1970] AC 642 [1970] AC 642
Citation 14

…te to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offe…

Legislation Cited

Penalties and Sentences Act 1992 (Qld) 9, 9(6)(d)
3 mentions (from Para 1)
Criminal Law Amendment Act 1997 (Qld)
1 mention (from Para 1)
Sexual Offences (Protection of Children) Amendment Act 2003 (Qld)
1 mention (from Para 1)
Victims of Crime Assistance Act 2009 (Qld) 15(5)(b)
1 mention

CITATION:	R v CBG [2013] QCA 44
PARTIES:	R v CBG (applicant)
FILE NO/S:	CA No 238 of 2012 DC No 273 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	15 March 2013
DELIVERED AT:	Brisbane
HEARING DATE:	26 February 2013
JUDGES:	White and Gotterson JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. The application for leave to appeal against sentence is granted; 2. The appeal is allowed; 3. The sentences are set aside; 4. On each of counts 1 and 2 the applicant is sentenced to three years imprisonment to be served concurrently with a declaration that the 210 days in pre-sentence custody be declared time spent under the sentence; and 5. The applicant's parole eligibility date is 15 March 2013.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the applicant pleaded guilty to two counts of indecent treatment of a child under 16, who was under 12 – the applicant was sentenced to six years imprisonment with a parole eligibility date after he had served two years – the applicant submitted that the offending in this case involved conduct at the lower end of the scale of seriousness – the applicant submitted that the sentencing judge was so influenced by the prior criminal history of the applicant as to have imposed a sentence which was disproportionate to the gravity of the offences – whether the sentence was manifestly excessive Criminal Code 1899 (Qld), s 210(1)(a), s 210(3) Criminal Law Amendment Act 1997 (Qld) Penalties and Sentences Act 1992 (Qld), s 9, s 9(1), s 9(1)(a), s 9(2)(b), s 9(2)(c), s 9(2)(d), s 9(2)(e), s 9(2)(f), s 9(2)(g), s 9(2)(h), s 9(2)(i), s 9(2)(j), s 9(2)(r), s 9(5)(b), s 9(6), s 9(6)(a), s 9(8), s 9(9), s 11, s 11(a), s 13, s 159A, s 160D(3) Sexual Offences (Protection of Children) Amendment Act 2003 (Qld) Victims of Crime Assistance Act 2009 (Qld), s 15(5)(b) Chester v The Queen (1988) 165 CLR 611; [1988] HCA 62, followed Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, cited Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, cited R v Aston (No 2) [1991] 1 Qd R 375, applied R v Brackenrig [2010] QCA 41, considered R v Dwyer[2008] QCA 117, cited R v Foy ex parte Attorney-General [2001] QCA 209, considered R v R[2000] QCA 27, considered R v SAQ[2002] QCA 221, considered R v SBM [2009] QCA 115, considered R v Schirmer[1995] QCA 242, considered R v Wharton; ex parte A-G (Qld)[2009] QCA 396, considered Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, applied
COUNSEL:	K…