R v Davis - [2012] QCA 324

SUPREME COURT OF QUEENSLAND

CITATION:

R v Davis [2012] QCA 324

PARTIES:

R
v
DAVIS, Warren Clive
(applicant)

FILE NO:

CA No 328 of 2011
BS No 1928 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

27 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

8 May 2012

JUDGES:

Fraser JA, Fryberg and Martin JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to one count of using a carriage service to access child pornography material and one count of knowingly possessing child exploitation material – where applicant in possession of 49,817 images and 305 videos containing child exploitation material – where applicant sentenced to a head sentence of four years imprisonment with a non-parole period of 16 months and the second count for two and a half years imprisonment suspended after 16 months – where two years and four months elapsed between the date of his arrest and the date of his sentence – whether sentence manifestly excessive – whether delay was a mitigating factor

Criminal Code 1899 (Qld), s 228D
Criminal Code Act 1995 (Cth), s 5.2(3), s 474.19(1), s 474.19(2)

Melham v Regina[2011] NSWCCA 121, distinguished
R v Garget-Bennett [2010] QCA 231; (2010) 204 A Crim R 193, distinguished
R v Grehan [2010] QCA 42; (2010) 199 A Crim R 408, cited
R v L [1995] QCA 444; [1996] 2 Qd R 63, applied

COUNSEL: MJ Copley SC for the applicant
AK Gett for the respondent

SOLICITORS: Legal Aid Queensland for the applicant
Director of Public Prosecutions (Cth) for the first defendant

FRASER JA: I agree with the reasons for judgment of Fryberg J and the order proposed by his Honour.

FRYBERG J: On 25 October 2011 in the District Court, the applicant was convicted on his plea of guilty of one count of using a carriage service to access child pornography material between 9 August 2005 and 1 June 2009 (a Commonwealth offence[1]) and another of possessing child exploitation material (a State offence[2]). On the first count Clare DCJ sentenced him to four years imprisonment with a non-parole period of 16 months and on the second to two and a half years imprisonment suspended after 16 months for an operational period of four years. He now seeks leave to appeal against those sentences. He submits that the first sentence should be reduced to imprisonment for three years with a non-parole period of nine months, and the second should be correspondingly adjusted by suspension after nine months.
[1]Criminal Code Act 1995 (Cth), s 474.19(1).
[2]Criminal Code 1899 (Qld), s228D.

The grounds of appeal relating to the first count were:

1. That the sentence was excessive and outside the appropriate range of sentences in…

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 Davis

Details

AGLC: R v Davis [2012] QCA 324
Case: [2012] QCA 324
Decision Date: 27 November 2012

CaseChat Overview and Summary

The appeal in R v Davis was brought by the applicant against the sentence imposed upon him following his conviction on two counts: using a carriage service to access child pornography material and knowingly possessing child exploitation material. The applicant was found in possession of a significant quantity of child exploitation material, comprising 49,817 images and 305 videos. The primary legal issue before the court was whether the sentence imposed was manifestly excessive or inadequate, warranting interference. A secondary issue was whether the delay between the applicant's arrest and the imposition of the sentence should be considered a mitigating factor.

The court considered the nature and gravity of the offences, the number of images and videos found, and the cumulative impact of the delay on the applicant. In assessing whether the sentence was manifestly excessive or inadequate, the court compared the sentence with those imposed in similar cases, taking into account the seriousness of the offences and the need for general and specific deterrence. The court also examined whether the delay in sentencing was a mitigating factor, weighing the reasons for the delay against the interests of justice and the principle of expedition in criminal proceedings.

Ultimately, the court found that the sentence was neither manifestly excessive nor inadequate, and that the delay did not sufficiently mitigate the severity of the sentence. The court determined that the sentence reflected the gravity of the offences and was consistent with sentencing principles applicable to similar cases. Therefore, the appeal against the sentence was dismissed, and the original sentence remained in place. The court's decision underscored the importance of considering the nature of the offences and the need for appropriate deterrence in sentencing for serious crimes involving child exploitation material.

Orders

Orders of the court

Application dismissed.

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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CITATION:	R v Davis [2012] QCA 324
PARTIES:	R v DAVIS, Warren Clive (applicant)
FILE NO:	CA No 328 of 2011 BS No 1928 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	27 November 2012
DELIVERED AT:	Brisbane
HEARING DATE:	8 May 2012
JUDGES:	Fraser JA, Fryberg and Martin JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to one count of using a carriage service to access child pornography material and one count of knowingly possessing child exploitation material – where applicant in possession of 49,817 images and 305 videos containing child exploitation material – where applicant sentenced to a head sentence of four years imprisonment with a non-parole period of 16 months and the second count for two and a half years imprisonment suspended after 16 months – where two years and four months elapsed between the date of his arrest and the date of his sentence – whether sentence manifestly excessive – whether delay was a mitigating factor Criminal Code 1899 (Qld), s 228D Criminal Code Act 1995 (Cth), s 5.2(3), s 474.19(1), s 474.19(2) Melham v Regina[2011] NSWCCA 121, distinguished R v Garget-Bennett [2010] QCA 231; (2010) 204 A Crim R 193, distinguished R v Grehan [2010] QCA 42; (2010) 199 A Crim R 408, cited R v L [1995] QCA 444; [1996] 2 Qd R 63, applied
COUNSEL:	MJ Copley SC for the applicant AK Gett for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Cth) for the first defendant