R v CBI

Case [2013] QCA 186 16 July 2013

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SUPREME COURT OF QUEENSLAND

CITATION:

R v CBI [2013] QCA 186

PARTIES:

R
v
CBI
(applicant)

FILE NO/S:

CA No 56 of 2013
DC No 1 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Warwick

DELIVERED ON:

16 July 2013

DELIVERED AT:

Brisbane

HEARING DATE:

20 June 2013

JUDGES:

Fraser and Gotterson JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after a trial of two counts of unlawfully and indecently dealing with a child under the age of 16 – where the complainant was under the age of 12 at the time of the offences – where the applicant was sentenced to concurrent terms of imprisonment of 12 months on the first count and 18 months on the second count, with eligibility for parole after having served nine months – where the applicant contended that the appropriate sentence was six months imprisonment for count 1 and between 12 to 15 months for count 2, with suspension rather than a parole eligibility date – where the applicant was 69 years of age at the time of sentence – where the applicant was in the position of a grandfather to the complainant child – where the applicant had no criminal history – whether the sentence imposed was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(5), s 9(6)

GAF v QPS[2008] QCA 190, considered
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
R v B [2003] QCA 105, considered
R v D [2002] QCA 445, considered
R v G; ex parte A-G (Qld) [1999] QCA 477, cited
R v Koster [2012] QCA 302, cited
R v KT; ex parte A-G (Qld) [2007] QCA 340, considered
R v L; ex parte Attorney-General (Qld) [1996] 2 Qd R 63; [1995] QCA 444, cited
R v Lacey; ex parte A-G (Qld) (2009) 197 A Crim R 399; [2009] QCA 274, cited
R v M [2003] QCA 556, considered
R v Moffat [2003] QCA 95, considered
R v Quick; ex parte A-G (Qld) (2006) 166 A Crim R 588; [2006] QCA 477, considered
R v T; ex parte A-G (Qld)[2002] QCA 132, cited
R v Tootell; ex parte A-G (Qld)[2012] QCA 273, cited

COUNSEL:

M E Johnson for the applicant
P J McCarthy for the respondent

SOLICITORS:

David Burns Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: On 20 February 2013 the applicant was found guilty by a jury and convicted of…

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 CBI

Details

AGLC: R v CBI [2013] QCA 186
Case: [2013] QCA 186
Decision Date: 16 July 2013

CaseChat Overview and Summary

In the case of R v CBI, the applicant, CBI, was convicted in the County Court of Victoria following a trial on two counts of unlawfully and indecently dealing with a child under the age of 16. The victim was under the age of 12 at the time of the offences. CBI was sentenced to concurrent terms of imprisonment of 12 months on the first count and 18 months on the second count, with eligibility for parole after having served nine months. CBI appealed against the sentence, arguing that it was manifestly excessive.

The legal issue for the Court of Appeal to determine was whether the sentence imposed was manifestly excessive, given the applicant's age, the absence of a criminal history, and the relationship between the applicant and the complainant. The Court of Appeal considered the seriousness of the offences, the need for general and specific deterrence, and the principle of parity in sentencing. The Court also took into account the applicant's age and the fact that he was in the position of a grandfather to the complainant child.

The Court of Appeal held that the sentence imposed was not manifestly excessive. The Court found that the primary judge had properly considered the relevant factors and had exercised his discretion in a manner consistent with the sentencing principles set out in the Sentencing Act 1991 (Vic). The Court noted that the offences were of a serious nature and that the applicant's age and relationship with the complainant were mitigating factors, but these were outweighed by the need for general and specific deterrence and the principle of parity in sentencing. The Court also found that the eligibility for parole after nine months served was an appropriate balance between punishment and rehabilitation.

The Court of Appeal dismissed the application for leave to appeal against sentence. The Court held that the sentence imposed was not manifestly excessive and that there were no other grounds for interference with the sentence.

Orders

Orders of the court

Application for leave to appeal against sentence 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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Citations

R v CBI [2013] QCA 186

Most Recent Citation

R v AAR [2014] QCA 20

Cases Citing This Decision

R v Beu [2025] QCA 155
Citation 1 (Para 15)

…. [1] R v SDX [No 2] [2024] QCA 78; R v MDG [2020] QCA 113; R v SDF [2018] QCA 316; R v Nelson [2018] QCA 53; R v Horvath [2014] QCA 344; R v CBI [2013] QCA 186. Operational periods…
R v SDR [2022] QCA 93
Citation 2 (Para 23)

…criminality on a global basis with parole eligibility fixed at the one third mark. [8] R v WBL [2020] QCA 88; R v HAN [2008] QCA 106; and R v CBI [2013] QCA 186.…
R v Stable (a pseudonym) [2020] QCA 270
Citation 3 (Para 26)

…e expected that these changes would produce a general increase in the severity of sentences, rendering the earlier cases of little utility. [24][2013] QCA 186 at [19]…
R v WBN [2020] QCA 203
Citation 4 (Para 7)

…he 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 Lightbody [2019] QCA 61
Citation 5 (Para 3)

…marked upward trend in penalties for dangerous driving was noted in R v MacDonald [2014] QCA 9 at [32]. [39][2012] QCA 7 at [43]. [40] R v CBI [2013] QCA 186 at [19] (Fraser JA), citing R v L; ex parte Attorney-General (Qld) [1996] 2 Qd R 63 at 65, R v G; ex parte Attorney-General (Qld) [1999] QCA 477 at [23], R…
R v Edwards [2019] QCA 15
Citation 6 (Para 32)

…factored into considerations of the appropriate sentence.[67] [67] R v G; Ex parte Attorney-General (Qld) [1999] QCA 477 at [23]. See also R v CBI [2013] QCA 186 at [19].…
R v MCT [2018] QCA 189
Citation 7 (Para 4)

…In relation to the Commonwealth offences one must note that there was an increase in the maximum penalty in 2010.[219] [219]See R v CDI [2013] QCA 186 at [19].…
R v Formenton [2018] QCA 77
Citation 8 (Para 29)

…05) 228 CLR 357 at [31], referred to by Fraser JA in R v Murray [2014] QCA 250 at [16]. [49] R v Murray at [16], referring in particular to R v CBI [2013] QCA 186 at [19].…
Ross v Commissioner of Police [2015] QDC 315
Citation 9 (Para 19)

…es at all levels (see R v SAH [2004] QCA 329 at [12] – [13].) The respondent’s counsel endorsed the following remarks I made in R v CBI [2013] QCA 186 at [19] about an increase in a different maximum penalty: “Those changes in the sentencing regime for this offence, especially the substantial increase in the maxi…
R v Schoner [2015] QCA 190
Citation 10 (Para 1)

…] Nevertheless I propose to refer to some of the earlier cases. [38] Criminal Code and Civil Liability Amendment Act 2007 (Qld) s 4. [39] R v CBI [2013] QCA 186 at [19]; R v Murray [2014] QCA 250 at [16]; in each case per Fraser JA.…
R v GAW [2015] QCA 166
Citation 11 (Para 5)

…the respondent particular reference was made to Moffat , Lynch and CBI as supporting the sentence imposed. [29][2003] QCA 95. [30][2011] QCA 309. [31][2013] QCA 186. [32][2011] QCA 305. [33][1997] QCA 467. [34][1998] QCA 289. [35][1999] QCA 309. [36][2000] QCA 123. [37][2004] QCA 453. [38][2008] QCA 23. [39][2009…
R v Reynolds [2015] QCA 111
Citation 12 (Para 2)

…ided the sentence imposed is within the bounds of judicial discretion and is just in all the circumstances, it should be upheld. [43] R v CBI [2013] QCA 186, [22]; Hili v The Queen (2010) 242 CLR 520, [58]-[59]; [2010] HCA 45; Wong v The Queen (2001) 207 CLR 584, [58]; [2001] HCA 64. [44] R v Dwyer [2008] QCA 117…
R v BCX [2015] QCA 188
Citation 13 (Para 23)

…ype of offending”. Two decisions of this Court were expressly relied on – R v MBM [10] and R v CBI. [11] [10](2011) 210 A Crim R 317. [11][2013] QCA 186.…
Commissioner of Police v Collyer [2015] QDC 7
Citation 14

…ies Act 2000 Cases Bugmy v R [2013] HCA 37 House v the King (1936) 25 CLR 499 R v Bowden (Unreported 472/1993, 30 March 1994) R v CBI [2013] QCA 186 R v Gilles; Ex parte Attorney-General [2002] Qd. R 404 R v Lamb (Unreported 317/140, 12 January 2015) R v Tootell; ex parte A-G (Qld ) [2012] QCA 273 R v Quick: ex p…
R v Horvath [2014] QCA 344
Citation 15 (Para 1)

…his appeal, after he had served two months imprisonment. [3][1994] QCA 565. [4][2008] QCA 190. [5] Ex-parte Attorney-General (Qld) [2009] QCA 353. [6][2013] QCA 186.…
Queensland Police Service v Terare [2014] QCA 260
Citation 16 (Para 1)

…a general increase in the severity of sentencing, rendering the earlier cases of little utility as comparable sentencing decisions: R v CBI .[26] [26][2013] QCA 186, [19].…
R v Murray [2014] QCA 250
Citation 17 (Para 1)

…nces at all levels (see R v SAH [2004] QCA 329 at [12] – [13].) The respondent’s counsel endorsed the following remarks I made in R v CBI [2013] QCA 186 at [19] about an increase in a different maximum penalty:…
R v AAR [2014] QCA 20
Citation 18 (Para 1)

…increased penalties should be anticipated.)[10] [9][2014] HCA 2, particularly at [27], [28], [34], [40], [41] and [43]. [10]See R v CBI [2013] QCA 186 at [19]-[20].…

See all citing cases →

Cases Cited

R v Koster [2012] QCA 302
Citation 1 (Para 1)

…ce. [4]The respondent submitted that the pre-existing law applies in relation to an offence which preceded the enactment of s 9(5)(b): R v Koster [2012] QCA 302. [5]See R v Tootell; ex parte A-G (Qld) [2012] QCA 273 at [18] – [25].…
R v Tootell; ex parte [2012] QCA 273
Citation 2 (Para 1)

…aw applies in relation to an offence which preceded the enactment of s 9(5)(b): R v Koster [2012] QCA 302. [5]See R v Tootell; ex parte A-G (Qld) [2012] QCA 273 at [18] – [25].…
Hili v The Queen [2010] HCA 45
Citation 3

…ties and Sentences Act 1992 (Qld), s 9(5), s 9(6) GAF v QPS [2008] QCA 190, considered Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v B [2003] QCA 105, considered R v D [2002] QCA 445, considered R v G; ex parte A-G (Qld) [1999] QCA 47…
R v Lacey; ex parte Attorney-General [2009] QCA 274
Citation 4 (Para 1)

…issible sentences,[12] although there is no indication of such an approach in the Chief Justice’s reasons. [12] R v Lacey; ex parte A-G (Qld) [2009] QCA 274 at [114], [149] – [153].…
GAF v QPS [2008] QCA 190
Citation 5 (Para 1)

…The respondent referred to R v D [2002] QCA 445, GAF v QPS [2008] QCA 190, and R v B [2003] QCA 105. In D , a sentence of six months imprisonment imposed after a trial was held to be within the sentencing discretion. That offender was the uncle of the complainant child who was about eight years old. He indecently…
R v. KT; ex parte A-G (Qld) [2007] QCA 340
Citation 6 (Para 1)

…After the hearing of the application, the Court invited submissions from the parties about the decision in R v KT; ex parte A-G (Qld) [2007] QCA 340. That case was decided after the maximum penalty was increased to 20 years imprisonment. A 58 year old man, who was a friend of the complainant’s family and staying…
R v Quick; ex parte A-G (Qld) [2006] QCA 477
Citation 7 (Para 1)

…The prosecution referred the sentencing judge to R v Moffat [2003] QCA 95 and R v Quick [2006] QCA 477. Defence counsel accepted that there were no exceptional circumstances of the kind which were required to avoid a custodial sentence. Defence counsel argued that imprisonment for 18 months was too high because t…
R v Whyte [2006] NSWCCA 75
Citation 8

…liament and works down in mathematical steps [ AB (1999) 198 CLR 111 at 121-122 [16]; Wong (2001) 207 CLR 584 at 611 [74]-[75], 612 [77]; R v Whyte (2002) 55 NSWLR 252 at 278 [160]-[166]]. The process is not so scientific. Because there are a multitude of factors to be taken into account, many of them pulling successi…
Markarian v The Queen [2005] HCA 25
Citation 9

…08] QCA 190, considered Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v B [2003] QCA 105, considered R v D [2002] QCA 445, considered R v G; ex parte A-G (Qld) [1999] QCA 477, cited R v Koster [2012] QCA 302, cited R v KT; ex parte A-G…
R v Osenkowski [2005] SASC 142
Citation 10

…cing there is sometimes a legitimate role for differences of judicial view. These may occasionally favour the extension of leniency, as Osenkowski [(1982) 30 SASR 212 at 212-213 per King CJ] shows. Necessarily, there must also be room for the views of a judicial officer who takes a more punitive view of all of the re…
R v M [2003] QCA 556
Citation 11 (Para 1)

…on appeal that imprisonment was ordered to be suspended after the offender had served three months. The applicant submitted that R v Moffat and R v M [2003] QCA 556 demonstrated that the appropriate sentence in this case was imprisonment for six months for count 1, imprisonment for between 12 and 15 months on cou…
Weininger v The Queen [2003] HCA 14
Citation 12

…in opposite directions, the evaluation, in terms of time of imprisonment, quantity of fine or other sanction, is necessarily imprecise [ Weininger (2003) 212 CLR 629 at 645 [50]]. Human judgment is inevitably invoked. In sentencing there is sometimes a legitimate role for differences of judicial view. These may occa…
R v B [2003] QCA 105
Citation 13 (Para 1)

…The respondent referred to R v D [2002] QCA 445, GAF v QPS [2008] QCA 190, and R v B [2003] QCA 105. In D , a sentence of six months imprisonment imposed after a trial was held to be within the sentencing discretion. That offender was the uncle of the complainant child who was about eight years old. He indecently…
R v Moffat [2003] QCA 95
Citation 14 (Para 1)

…The prosecution referred the sentencing judge to R v Moffat [2003] QCA 95 and R v Quick [2006] QCA 477. Defence counsel accepted that there were no exceptional circumstances of the kind which were required to avoid a custodial sentence. Defence counsel argued that imprisonment for 18 months was too high because…
R v D [2002] QCA 445
Citation 15 (Para 1)

…The respondent referred to R v D [2002] QCA 445, GAF v QPS [2008] QCA 190, and R v B [2003] QCA 105. In D , a sentence of six months imprisonment imposed after a trial was held to be within the sentencing discretion. That offender was the uncle of the complainant child who was about eight years old. He indecently…
R v T; ex parte Attorney-General of Queensland [2002] QCA 132
Citation 16

…95, considered R v Quick; ex parte A-G (Qld) (2006) 166 A Crim R 588; [2006] QCA 477, considered R v T; ex parte A-G (Qld) [2002] QCA 132, cited R v Tootell; ex parte A-G (Qld) [2012] QCA 273, cited COUNSEL: M E Johnson for the applicant P J McCarthy for the respondent SOLICITORS: David Burns Lawyers for the app…
Wong v The Queen [2001] HCA 64
Citation 17

…ctivity in which one starts from the maximum fixed by Parliament and works down in mathematical steps [ AB (1999) 198 CLR 111 at 121-122 [16]; Wong (2001) 207 CLR 584 at 611 [74]-[75], 612 [77]; R v Whyte (2002) 55 NSWLR 252 at 278 [160]-[166]]. The process is not so scientific. Because there are a multitude of facto…
AB v The Queen [1999] HCA 46
Citation 18

…nical, numerical, arithmetical or rigid activity in which one starts from the maximum fixed by Parliament and works down in mathematical steps [ AB (1999) 198 CLR 111 at 121-122 [16]; Wong (2001) 207 CLR 584 at 611 [74]-[75], 612 [77]; R v Whyte (2002) 55 NSWLR 252 at 278 [160]-[166]]. The process is not so scientifi…
R v L; ex parte Attorney-General [1995] QCA 444
Citation 19

…A 302, cited R v KT; ex parte A-G (Qld) [2007] QCA 340, considered R v L; ex parte Attorney-General (Qld) [1996] 2 Qd R 63; [1995] QCA 444, cited R v Lacey; ex parte A-G (Qld) (2009) 197 A Crim R 399; [2009] QCA 274, cited R v M [2003] QCA 556, considered R v Moffat [2003] QCA 95, considered R v Quick; ex parte A…
R v G, ex parte Attorney-General [1999] QCA 477
Citation 20

…8 CLR 357; [2005] HCA 25, cited R v B [2003] QCA 105, considered R v D [2002] QCA 445, considered R v G; ex parte A-G (Qld) [1999] QCA 477, cited R v Koster [2012] QCA 302, cited R v KT; ex parte A-G (Qld) [2007] QCA 340, considered R v L; ex parte Attorney-General (Qld) [1996] 2 Qd R 63; [1995] QCA 444, cited R…

Legislation Cited

Penalties and Sentences (Sentencing Advisory Council) Amendment Act 2010 (Qld) 5
2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld) 9(5)
2 mentions (from Para 1)
Criminal Code and Other Acts Amendment Act 2008 (Qld)
1 mention (from Para 1)
Sexual Offences (Protection of Children) Amendment Act 2003 (Qld)
1 mention (from Para 1)

CITATION:	R v CBI [2013] QCA 186
PARTIES:	R v CBI (applicant)
FILE NO/S:	CA No 56 of 2013 DC No 1 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Warwick
DELIVERED ON:	16 July 2013
DELIVERED AT:	Brisbane
HEARING DATE:	20 June 2013
JUDGES:	Fraser and Gotterson JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after a trial of two counts of unlawfully and indecently dealing with a child under the age of 16 – where the complainant was under the age of 12 at the time of the offences – where the applicant was sentenced to concurrent terms of imprisonment of 12 months on the first count and 18 months on the second count, with eligibility for parole after having served nine months – where the applicant contended that the appropriate sentence was six months imprisonment for count 1 and between 12 to 15 months for count 2, with suspension rather than a parole eligibility date – where the applicant was 69 years of age at the time of sentence – where the applicant was in the position of a grandfather to the complainant child – where the applicant had no criminal history – whether the sentence imposed was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9(5), s 9(6) GAF v QPS[2008] QCA 190, considered Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v B [2003] QCA 105, considered R v D [2002] QCA 445, considered R v G; ex parte A-G (Qld) [1999] QCA 477, cited R v Koster [2012] QCA 302, cited R v KT; ex parte A-G (Qld) [2007] QCA 340, considered R v L; ex parte Attorney-General (Qld) [1996] 2 Qd R 63; [1995] QCA 444, cited R v Lacey; ex parte A-G (Qld) (2009) 197 A Crim R 399; [2009] QCA 274, cited R v M [2003] QCA 556, considered R v Moffat [2003] QCA 95, considered R v Quick; ex parte A-G (Qld) (2006) 166 A Crim R 588; [2006] QCA 477, considered R v T; ex parte A-G (Qld)[2002] QCA 132, cited R v Tootell; ex parte A-G (Qld)[2012] QCA 273, cited
COUNSEL:	M E Johnson for the applicant P J McCarthy for the respondent
SOLICITORS:	David Burns Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent