R v Cunningham

[2008] QCA 289

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cunningham [2008] QCA 289

PARTIES:

R
v
CUNNINGHAM, Michael John
(applicant)

FILE NO/S:

CA No 168 of 2008
DC No 76 of 2008
DC No 234 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

26 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

19 September 2008

JUDGES:

Mackenzie AJA, Cullinane and Jones JJ
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 dismissed

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 REFUSED – GENERALLY – where the applicant pleaded guilty to one count of maintaining a sexual relationship with a child and five counts of indecent treatment of a child – where the applicant was sentenced to 18 months imprisonment for the counts of maintaining a sexual relationship with a child and the first offence of indecent treatment of a child and two years for each of the remaining four counts of indecent treatment – where all sentences to be served concurrently – whether the sentence imposed was manifestly excessive in the circumstances

Child Protection (Offender Reporting) Act 2004 (Qld)
Corrective Services Act 2006 (Qld), s 497
Penalties and Sentences Act 1992 (Qld), s 160D

R v AS [2004] QCA 220, cited
R v C [2000] QCA 385, considered
R v O [2001] QCA 40, considered
R v WAA [2008] QCA 87, considered

COUNSEL:

S Kissick for the applicant
R Pointing for the respondent

SOLICITORS:

Bradley Munt & Co for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. MACKENZIE AJA:  I agree, for the reasons given by Jones J, that the sentence of two years imprisonment is not manifestly excessive. 

1. With regard to early release, the amendment of the Penalties and Sentences Act 1992 (“PSA”) by section 497 of the Corrective Services Act 2006, which inserted a new Part 9, Division 3 PSA, subjects sexual offenders to a different early release regime from other prisoners serving terms of imprisonment of not more than three years. The requirement in s 160D PSA that only a parole eligibility date, not a fixed parole release date, may be granted means that each offender’s case will be considered individually with regard to suitability for early release.

1. The applicant’s submission that, instead of a parole eligibility date, a partial suspension of the sentence should have been granted, was based on a generalised concern that his release might be delayed because the period before the parole eligibility date was only nine months from the date of sentence.  It was submitted that he might not have time to gain a place in and complete any course which would enhance his prospects of release at the earliest possible date.

1. It is…