R v EH

[2009] QCA 71

SUPREME COURT OF QUEENSLAND

CITATION:

R v EH [2009] QCA 71

PARTIES:

R
v
EH
(applicant)

FILE NO/S:

CA No 175 of 2007
DC No 302 of 2007
DC No 303 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Criminal

ORIGINATING COURT:

District Court at Southport

DELIVERED EX TEMPORE ON:

26 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

26 March 2009

JUDGES:

McMurdo P and Holmes JA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Sentence reopened under s 188(1)(c) of the Penalties and Sentences Act 1992 (Qld);

2.   Applicant resentenced in respect of counts 3 and 4 on indictment number 4428 of 2007 to 12 months imprisonment;

3.   Declared that applicant has served 12 months imprisonment on those counts.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – OTHER MATTERS – where applicant sought reopening of sentence imposed on appeal on the ground that, in allowing his appeal and reducing sentences on some counts, the Court inadvertently increased sentences on two other, lesser counts – where applicant’s submission correct

COUNSEL:

Heard on the papers

SOLICITORS:

Heard on the papers

THE PRESIDENT:  This appeal was heard by a Court comprising Holmes JA, Mackenzie AJA and me on 22 February 2008.  The reasons were delivered on 28 March 2008.  See R v EH [2008] QCA 67.

The appellant wrote to the Deputy Registrar Appeals raising some concerns about the formal orders made. As a result, this Court determined to reopen the sentence under s 188 Penalties and Sentences Act 1992 (Qld).

Mackenzie AJA is now retired from office. For the purposes of this reopening the Court is constituted by Holmes JA and me. See s 31 Supreme Court of Queensland Act 1991 (Qld).

The parties have requested the Court determine the matter on their written submissions only, without necessitating any further appearance by them in Court.  The Court has acceded to that request and has now considered their written submissions.  Justice Holmes will now deliver the reasons and further orders of the Court.

HOLMES JA:  On 28 March 2008, the applicant was granted leave to appeal against sentence.  The sentences imposed on him at first instance were set aside, and he was resentenced to six years and nine months imprisonment on one count of maintaining an unlawful sexual relationship with a child under 16 years; two years imprisonment on seven counts of indecent treatment; and six months imprisonment on a remaining count of indecent treatment.

He seeks a reopening under s 188 Penalties and Sentences Act 1992 (Qld) in respect of one aspect only of those sentences, on the basis that there was a "clear factual error of substance." That was, that the Court had overlooked the fact that the sentence imposed at first instance in respect of two of the indecent treatment counts was 12 months imprisonment.

The applicant points out that in respect of five of the counts of indecent treatment, which involved touching the…