SUPREME COURT OF QUEENSLAND
CITATION:
R v CBO [2016] QCA 24
PARTIES:
R
v
CBO
(applicant)FILE NO/S:
CA No 64 of 2015
DC No 531 of 2014DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Brisbane – Date of Sentence: 27 March 2015DELIVERED ON:
12 February 2016
DELIVERED AT:
Brisbane
HEARING DATE:
4 September 2015
JUDGES:
Fraser and Philippides JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. Grant the application for leave to appeal against sentence.
2. Allow the appeal.
3. Vary the orders made in the District Court by:
a. Setting aside each of the orders for imprisonment and the declaration that the conviction on count 12 is a conviction for a serious violent offence, and
b. Ordering that the applicant be sentenced as follows:
i. Ten years imprisonment on each of counts 7, 9 and 10, six years imprisonment on count 4, and three years imprisonment on each of counts 3, 5, 8 and 11, each such term of imprisonment to be served concurrently with each other such term of imprisonment.
ii. Three years imprisonment on count 12, such term of imprisonment to be served cumulatively upon the concurrent terms of imprisonment imposed upon counts 3, 4, 5, 7, 8, 9, 10 and 11.
4. Confirm the declaration made in the District Court pursuant to s 159A of the Penalties and Sentences Act1992 (Qld) that the whole of the period between 26 March 2015 and 27 March 2015 during which the applicant was held in pre-sentence custody be imprisonment already served under the sentence for each count.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was found guilty after a trial of one count of maintaining an unlawful sexual relationship with a child under 16, four counts of rape, two counts of indecently dealing with a child, one count of indecently dealing with a child with a circumstance of aggravation that the child was under 12 years, and one count of indecently dealing with a child with a circumstance of aggravation that the child was under the applicant’s care – where the applicant was sentenced to an effective sentence of imprisonment of 13 years – where the applicant alleged this was manifestly excessive by reference to comparable sentencing decisions – where the applicant’s offending was a very serious example of offending against a child – where the applicant was the complainant’s stepfather – where the applicant did not cooperate with the police – where the complainant was very seriously adversely affected – where the offending extended over a period of approximately eight years – where the offending comprehended penile rape – whether the sentence imposed was manifestly excessive
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR…
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- AGLC
- R v CBO [2016] QCA 24
- Case
- [2016] QCA 24
- Decision Date
CaseChat Overview and Summary
The court examined the nature and severity of the applicant's offending, which involved a prolonged period of abuse against a child, the applicant's lack of cooperation with the police, and the significant impact on the complainant. The court also considered the statutory provisions relevant to sentencing and the application of Part 9A of the Penalties and Sentences Act 1992 (Qld). The court noted that the sentencing judge had observed that an appropriate head sentence for the offending was 14 years imprisonment, but had moderated the sentence to 13 years imprisonment, taking into account the delay in bringing the matter to trial and the applicant's age at the time of sentencing. The court concluded that the sentencing judge's approach was not inappropriate, and that the sentence imposed was not manifestly excessive or inadequate.
In light of the court's findings, the appeal was allowed, and the orders made in the District Court were varied. The applicant was sentenced to ten years imprisonment on each of counts 7, 9 and 10, six years imprisonment on count 4, and three years imprisonment on each of counts 3, 5, 8 and 11, with each term of imprisonment to be served concurrently. The applicant was also sentenced to three years imprisonment on count 12, to be served cumulatively upon the concurrent terms of imprisonment imposed upon the other counts. The declaration made in the District Court pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) was confirmed, with the whole of the period between 26 March 2015 and 27 March 2015 during which the applicant was held in pre-sentence custody considered as imprisonment already served under the sentence for each count.
Orders
Orders of the court
1. Grant the application for leave to appeal against sentence.
2. Allow the appeal.
3. Vary the orders made in the District Court by:
a. Setting aside each of the orders for imprisonment and the declaration that the conviction on count 12 is a conviction for a serious violent offence, and
b. Ordering that the applicant be sentenced as follows:
i. Ten years imprisonment on each of counts 7, 9 and 10, six years imprisonment on count 4, and three years imprisonment on each of counts 3, 5, 8 and 11, each such term of imprisonment to be served concurrently with each other such term of imprisonment.
ii. Three years imprisonment on count 12, such term of imprisonment to be served cumulatively upon the concurrent terms of imprisonment imposed upon counts 3, 4, 5, 7, 8, 9, 10 and 11.
4. Confirm the declaration made in the District Court pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) that the whole of the period between 26 March 2015 and 27 March 2015 during which the applicant was held in pre-sentence custody be imprisonment already served under the sentence for each count.
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
The sentencing judge observed that, but for the delay in bringing the matter to trial because of the delay in the making of the complaint, an appropriate head sentence for the offending was 14 years imprisonment. Taking into account that during that period of delay there had been no subsequent offending and the applicant had become much older so that prison would be much more of a burden on him, the sentencing judge moderated the head sentence to one of 13 years imprisonment.Consideration The maximum penalty for each of the offences of rape charged in counts 7, 9, 10 and 12 was life imprisonment. The maximum penalty at the relevant times for each of counts 3, 8 and 11 was five years imprisonment. The maximum penalty for count 5 was 10 years imprisonment. The maximum penalty for the offence of maintaining a relationship of a sexual nature with a child under 16 years in count 4 for the whole of the period charged in that count was seven years imprisonment.[6] The applicant was not charged with the circumstance of aggravation that, in the course of the relationship, he had committed an offence of a sexual nature for which he was liable to imprisonment for 14 years or more. If the applicant had been charged with and convicted of that circumstance of aggravation he would have been liable to imprisonment for life. That the applicant might have been convicted of this circumstance of aggravation if it had been charged could not be taken into account by way of increasing the sentence for count 4. The High Court’s decision in R v De Simoni[7] compels the conclusion that the sentence for count 4 could not be increased to take into account the charged or uncharged offences of rape during the sexual relationship of which the complainant gave evidence. The charged offences of rape of which the applicant was convicted could of course attract the appropriate punishments, but the uncharged offences of rape could not attract any punishment.[6]The maximum penalty was increased to 14 years with effect from 1 July 1997: Act No 3 of 1997. It was subsequently increased to life imprisonment with effect from 1 May 2003: Act No 3 of 2003.[7]R v De Simoni (1981) 147 CLR 383 at 388-392 (Gibbs CJ, Mason and Murphy JJ agreeing). It must also be accepted that Pt 9A of the Penalties and Sentences Act 1992 (Qld) was capable of application in this sentence only in relation to count 12, because all of the other offences of which the applicant was convicted were committed before Pt 9A commenced to operate.[8] Subject to qualifications which are not presently relevant, the effect of a declaration under Pt 9A that a particular conviction is a conviction of a serious violent offence is that the prisoner’s parole eligibility date is the day after the day on which the prisoner has served the lesser of 80 per cent of the prisoner’s term of imprisonment for the serious violent offence or 15 years.[9] In the absence of such a declaration, a prisoner’s parole eligibility date for sentences of imprisonment of the length imposed upon the applicant would be the day on which the prisoner has served half the period of imprisonment to which the prisoner has been sentenced, unless a different parole eligibility date is fixed for the prisoner by the sentencing court under Penalties and Sentences Act 1992 (Qld), Pt 9 Div 3.[10] (Again that is subject to qualifications which are not presently relevant.)[8]See R v Mason and Saunders [1998] 2 Qd R 186; R v Breeze (1999) 106 A Crim 441.[9]Corrective Services Act 2006 (Qld), s 12A.[10]Corrective Services Act 2006 (Qld), s 184(2), (3)(a).