R v CBQ

Case [2016] QCA 125 6 May 2016

Type to search within this case.

SUPREME COURT OF QUEENSLAND

CITATION:

R v CBQ [2016] QCA 125

PARTIES:

R
v
CBQ
(applicant)

FILE NO/S:

CA No 200 of 2015
DC No 750 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 23 July 2014

DELIVERED ON:

6 May 2016

DELIVERED AT:

Brisbane

HEARING DATE:

16 March 2016

JUDGES:

Gotterson and Philip McMurdo JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for extension of time refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHERE REFUSED – where the applicant was convicted on his own plea to 13 counts of sexual offending against one female child over a two year and four month period – where the applicant was sentenced to nine years’ imprisonment for the maintain count, six years’ imprisonment for the rape count, and shorter concurrent periods of imprisonment for the other counts – where the applicant filed an application for an extension of time within which to appeal, being approximately 12 months out of time in filing an application for leave to appeal against his sentence for the maintaining count, alleging the sentence is manifestly excessive – where it is alleged that the delay in filing the application was caused by a lack of information provided to the applicant by his previous lawyers – where it is alleged that the sentence did not account for the principle that the presence of a mental disorder lessens an offender’s moral culpability and thereby reduces the need for general deterrence in exercising the sentencing discretion – where it is alleged that the sentence did not account for the applicant’s substantial progress towards rehabilitation in the 21 years between the times of the offending and the sentence – whether there is any good reason shown to account for the delay – whether, overall, it is in the interests of justice to grant the extension

Criminal Code (Qld), s 671(1)

R v D’Arcy (2001) 122 A Crim R 268; [2001] QCA 325, considered
R v Goodger [2009] QCA 377, considered
R v L; ex parte Attorney-General [1996] 2 Qd R 63; [1995] QCA 444, considered
R v Rix[2014] QCA 278, considered

COUNSEL:

T A Ryan for the applicant
S J Farnden for the respondent

SOLICITORS:

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

GOTTERSON JA: The applicant, CBQ, pleaded guilty to 13 counts of offending against the one female child. One count was of maintaining a sexual relationship with her over a period of about two years and four months with circumstances of aggravation. Six counts were of indecent treatment of a child under care, two of which were when she was under 12 years of age. There was a count of rape and five counts of unlawful carnal knowledge of a…

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 CBQ

Details

AGLC: R v CBQ [2016] QCA 125
Case: [2016] QCA 125
Decision Date: 6 May 2016

CaseChat Overview and Summary

The case of R v CBQ involves the applicant who was convicted on his own plea of 13 counts of sexual offending against a single female child, which occurred over a period of two years and four months. The applicant was sentenced to nine years' imprisonment for the maintaining count, six years for the rape count, and shorter concurrent terms for the other counts. The applicant subsequently filed an application for an extension of time within which to appeal, being approximately 12 months out of time in filing an application for leave to appeal against his sentence for the maintaining count. The applicant alleged that the sentence was manifestly excessive and claimed that the delay in filing the application was due to a lack of information provided by his previous lawyers. The applicant further argued that the sentence did not account for the principle that the presence of a mental disorder lessens an offender's moral culpability, thereby reducing the need for general deterrence in exercising the sentencing discretion. Additionally, it was alleged that the sentence did not account for the applicant's substantial progress towards rehabilitation over the 21 years between the times of the offending and the sentence. The legal issues before the court were whether there was any good reason shown to account for the delay and whether, overall, it was in the interests of justice to grant the extension.

The court considered the relevant statutory provisions and case law concerning extensions of time for appeals, the principles of general deterrence and moral culpability, and the principle that rehabilitation should be considered in sentencing. The court found that the applicant had not shown any good reason to account for the delay in filing the application for an extension of time. The applicant's previous lawyers had provided him with the necessary information, and the applicant had failed to take reasonable steps to file the application within the relevant time frame. The court also found that the sentence did account for the principle that the presence of a mental disorder lessens an offender's moral culpability, and that the applicant's substantial progress towards rehabilitation was adequately considered in the sentence. The court concluded that, overall, it was not in the interests of justice to grant the extension of time for the appeal.

The court dismissed the application for an extension of time, leaving the original sentence intact. The applicant was not granted leave to appeal against his sentence for the maintaining count, and the original sentence of nine years' imprisonment for the maintaining count, six years for the rape count, and shorter concurrent terms for the other counts, remains in effect. The applicant has the option to apply for special leave to appeal to a higher court if he wishes to challenge the sentence further.

Orders

Orders of the court

Application for extension of time refused.

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 CBQ [2016] QCA 125

Most Recent Citation

R v McCoy [2020] QCA 59

Cases Citing This Decision

R v HCF [2021] QCA 189
Citation 1 (Para 3)

…those decisions had given him “significant assistance in determining what is the appropriate sentence in this case”.[29] [27][2002] QCA 448. [28][2016] QCA 125. [29]AB 122 line 8.…
R v McCoy [2020] QCA 59
Citation 2 (Para 8)

…or. The sentencing judge still recognised that as the applicant was a youthful offender, rehabilitation was a relevant consideration. [5] R v CBQ [2016] QCA 125. Conclusion…
Gordon v Macarthur [2019] QDC 15
Citation 3

…2 Qd R 182 R v Bryant [2005] QCA 19 R v Bulmer [2000] QCA 248 R v Cay , Gersch and Schell; Ex-parte A-G (Queensland) [2005] QCA 467 R v CBQ [2016] QCA 125 R v Clemments [2010] QCA 38 R v Condoleon (1993) 69 A Crim R 573 R v Docherty [2009] QCA 379 R v Fullalove (1993) 68 A Crim R 486 R v Goodger [2009] QCA 377 R…
Hurley v The Commissioner of the Queensland Police Service [2017] QDC 297
Citation 4 (Para 1)

…The Queensland Court of Appeal in R v CBQ [2016] QCA 125 recently and relevantly observed:…

See all citing cases →

Cases Cited

R v Abell [2015] QCA 144
Citation 1 (Para 5)

…atisfactory explanation for the delay.[3] [2] R v CAP (No 2) [2014] QCA 323 per Morrison JA, Muir and Fraser JJA agreeing, at [4], [5]. [3] R v Abell [2015] QCA 144 per Fraser JA, Morrison JA and Flanagan J agreeing, at [5].…
R v CAP (No 2) [2014] QCA 323
Citation 2 (Para 5)

…has any prospects of success may of itself justify a refusal of an extension despite a satisfactory explanation for the delay.[3] [2] R v CAP (No 2) [2014] QCA 323 per Morrison JA, Muir and Fraser JJA agreeing, at [4], [5]. [3] R v Abell [2015] QCA 144 per Fraser JA, Morrison JA and Flanagan J agreeing, at [5].…
R v Rix [2014] QCA 278
Citation 3 (Para 12)

…ects of rehabilitation, that the condition itself or its symptoms or sequelae may have.” [13][2009] QCA 377 at [21]. [14]At [22]. [15][2014] QCA 278 per Gotterson JA at [55].…
R v Goodger [2009] QCA 377
Citation 4 (Para 12)

…ng, the need for deterrence and the prospects of rehabilitation, that the condition itself or its symptoms or sequelae may have.” [13][2009] QCA 377 at [21]. [14]At [22]. [15][2014] QCA 278 per Gotterson JA at [55].…
R v Verdins [2007] VSCA 102
Citation 5 (Para 11)

…conduct in which the offender engaged is less likely to be a relevant sentencing objective.[12] [12] R v Tsiaras [1996] 1 VR 398 at 400; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5], [32].…
R v SAU [2006] QCA 192
Citation 6 (Para 1)

…nd R v SAU. [25]It is unnecessary to detail the circumstances of each of those cases. [22][2002] QCA 378. [23][1996] QCA 363. [24][2002] QCA 448. [25][2006] QCA 192.…
R v KJB [2002] QCA 448
Citation 7 (Para 1)

…,[23] R v KJB [24] and R v SAU. [25]It is unnecessary to detail the circumstances of each of those cases. [22][2002] QCA 378. [23][1996] QCA 363. [24][2002] QCA 448. [25][2006] QCA 192.…
R v KAI [2002] QCA 378
Citation 8 (Para 1)

…comparable cases of R v KAI ,[22] R v D ,[23] R v KJB [24] and R v SAU. [25]It is unnecessary to detail the circumstances of each of those cases. [22][2002] QCA 378. [23][1996] QCA 363. [24][2002] QCA 448. [25][2006] QCA 192.…
R v D'Arcy [2001] QCA 325
Citation 9 (Para 2)

…ced. Its absence does not mean that one should disregard evidence of a substantial period of law-abiding and socially useful living.”[20] [18][2001] QCA 325. [19](1983) 47 ALR 746. [20]At [170].…
R v Jiminez [1999] NSWCCA 7
Citation 10 (Para 11)

…d denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective.[12] [12] R v Tsiaras [1996] 1 VR 398 at 400; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5], [32].…
R v Tait [1998] QCA 304
Citation 11 (Para 4)

…ant’s proposed appeal.[1] Such an assessment will assist in determining whether the interests of justice commend an extension of time. [1] R v Tait [1998] QCA 304; [1999] 2 Qd R 667 per McMurdo P, Thomas JA and Cullinane J agreeing, at [5].…
R v D [1996] QCA 363
Citation 12 (Para 1)

…R v KAI ,[22] R v D ,[23] R v KJB [24] and R v SAU. [25]It is unnecessary to detail the circumstances of each of those cases. [22][2002] QCA 378. [23][1996] QCA 363. [24][2002] QCA 448. [25][2006] QCA 192.…
R v L; ex parte Attorney-General [1995] QCA 444
Citation 13 (Para 3)

…parte Attorney-General [21] that delay in sentencing may have relevance where rehabilitation, or good progress towards rehabilitation, is shown. [21][1995] QCA 444; [1996] 2 Qd R 63 at 66.…

Legislation Cited

No legislation cited in this judgment.

CITATION:	R v CBQ [2016] QCA 125
PARTIES:	R v CBQ (applicant)
FILE NO/S:	CA No 200 of 2015 DC No 750 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 23 July 2014
DELIVERED ON:	6 May 2016
DELIVERED AT:	Brisbane
HEARING DATE:	16 March 2016
JUDGES:	Gotterson and Philip McMurdo JJA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for extension of time refused.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHERE REFUSED – where the applicant was convicted on his own plea to 13 counts of sexual offending against one female child over a two year and four month period – where the applicant was sentenced to nine years’ imprisonment for the maintain count, six years’ imprisonment for the rape count, and shorter concurrent periods of imprisonment for the other counts – where the applicant filed an application for an extension of time within which to appeal, being approximately 12 months out of time in filing an application for leave to appeal against his sentence for the maintaining count, alleging the sentence is manifestly excessive – where it is alleged that the delay in filing the application was caused by a lack of information provided to the applicant by his previous lawyers – where it is alleged that the sentence did not account for the principle that the presence of a mental disorder lessens an offender’s moral culpability and thereby reduces the need for general deterrence in exercising the sentencing discretion – where it is alleged that the sentence did not account for the applicant’s substantial progress towards rehabilitation in the 21 years between the times of the offending and the sentence – whether there is any good reason shown to account for the delay – whether, overall, it is in the interests of justice to grant the extension Criminal Code (Qld), s 671(1) R v D’Arcy (2001) 122 A Crim R 268; [2001] QCA 325, considered R v Goodger [2009] QCA 377, considered R v L; ex parte Attorney-General [1996] 2 Qd R 63; [1995] QCA 444, considered R v Rix[2014] QCA 278, considered
COUNSEL:	T A Ryan for the applicant S J Farnden for the respondent
SOLICITORS:	Bosscher Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent