R v FBG - [2024] QCA 131

SUPREME COURT OF QUEENSLAND

CITATION:

R v FBG [2024] QCA 131

PARTIES:

R
v
FBG
(applicant)

FILE NO/S:

CA No 225 of 2023
DC No 1145 of 2023
DC No 1766 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 27 October 2023 (Clare SC DCJ)

DELIVERED ON:

26 July 2024

DELIVERED AT:

Brisbane

HEARING DATE:

15 July 2024

JUDGES:

Dalton JA and Hindman and Crowley JJ

ORDER:

The application for leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of maintaining a sexual relationship with a child, thirty-seven counts of indecent treatment of a child, one count of rape, one count of possessing child exploitation material, one count of using a carriage service to access child pornography material and one count of using carriage service to access child abuse material – where the applicant was in a position of trust in relation to the two complainants – where the applicant was sentenced to 11 years’ imprisonment – whether the applicant’s plea of guilty was given sufficient weight – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 161A(a)

R v MBJ[2010] QCA 211, considered

COUNSEL:

S A Lynch for the applicant
B J Jackson for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

DALTON JA: I agree with the order proposed by Hindman J and with her reasons.
HINDMAN J: The applicant pleaded guilty in the District Court to an indictment[1] charging him with:
(a)one count of maintaining a sexual relationship with a child under 16 years (domestic violence offence) (count 1);
(b)thirty-seven counts of taking an indecent photograph of a child under 12 years under care (domestic violence offence) (counts 2-37, 39);
(c)one count of rape (domestic violence offence) (count 38);
(d)one count of possessing child exploitation material (count 40);
(e)one count of using a carriage service to access child pornography material (count 41);
(f)one count of using carriage service to access child abuse material (count 42).
[1]There were also two relevantly unrelated summary charges.
There were two child complainants and the relevant offending occurred in the period between 28 October 2015 and 14 August 2020.
The applicant was sentenced to concurrent terms of imprisonment on all counts (except counts 2-33 that were convictions, convictions recorded, not further punished[2]), the longest being a term of 11 years on count 1 (the maintaining count). That offence was necessarily declared to have been a serious violent offence according to s 161A(a)of the Penalties and Sentences Act 1992 (Qld). A period of 1,170 days was declared as pre-sentence custody that had been served.
[2]Effectively part of the particulars of the maintaining count.
The application is for leave to appeal against the head sentence of 11 years, to the end…

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 FBG

Details

AGLC: R v FBG [2024] QCA 131
Case: [2024] QCA 131
Decision Date: 26 July 2024

CaseChat Overview and Summary

In the case of R v FBG, the applicant sought leave to appeal against his sentence of eleven years' imprisonment imposed by the sentencing judge. The applicant had pleaded guilty to multiple counts of child sexual abuse, possession of child exploitation material, and accessing child pornography and abuse material. The applicant argued that the sentence was manifestly excessive and that the sentencing judge had not appropriately considered his plea of guilty and the bio-security measures imposed during the pandemic.

The legal issues before the court were whether the sentence was manifestly excessive and whether the applicant’s plea of guilty and the bio-security measures were appropriately considered. The court assessed the severity of the crimes, the position of trust held by the applicant, and the extent of the offending. Given the heinous nature of the crimes, the court considered that the sentence was appropriate. The court held that the applicant’s plea of guilty and the bio-security measures were taken into account by the sentencing judge. The court also noted that the sentence imposed was within the range of sentences for similar offences.

Accordingly, the court refused the application for leave to appeal. The court found that the sentence imposed was not manifestly excessive and that the sentencing judge had appropriately considered the relevant factors in imposing the sentence. The court concluded that there was no basis for interference with the sentence imposed by the primary judge.

Orders

Orders of the court

The application for leave to appeal is refused.

Background

Background to the litigation

The application is for leave to appeal against the head sentence of 11 years, to the end that the sentence should be reduced to eight years, with no serious violent offence declaration. The proposed appeal is on the grounds that (1) the learned sentencing judge failed to make any or a proper allowance for the plea of guilty, the applicant’s rehabilitation and the bio-security measures imposed during the pandemic, and (2) the sentence is manifestly excessive.Facts The facts of the offending were not in dispute. There were three sets of offending, each serious on its own. The offending was detected by police by accessing images located on digital devices owned by the applicant. First, in respect of counts 1 - 33, the applicant sexually offended against his biological nephew who was aged between seven and ten years old at the time. The offending came about in circumstances where the parents of the child had trusted the applicant to babysit him. Some of the offending occurred when the applicant had taken the child to places overnight without the parents’ knowledge. The applicant maintained a relationship with the child over a period of two years and eight months by:“Putting his tongue in (the child’s) mouth and kissing him, touching (the child’s) penis, exposing his own penis to (the child), having (the child) expose his penis, buttocks, and anus, to himself.”[3][3]ARB 36, LL8-12. During the maintenance of that relationship, offending further occurred whereby the applicant:(a)ejaculated on the child;(b)put his penis in the child’s mouth;(c)posed the child in sexualised positions (including those mentioned in (a) and (b) above), including displaying the child’s anus and penis, to photograph;[4](d)threatened the child with adverse outcomes if the offending was disclosed.[4]217 photographs of the child were located. Second, in respect of counts 34 - 39, the applicant sexually offended against the son of his cousin, who was aged two years old. The offending came about in circumstances where the applicant had been staying with the cousin’s family over a number of days. This offending occurred the year after contact with the older child had ceased. On four occasions the applicant took pictures of the child’s erect penis during a nappy change. On another occasion he inserted his finger into the child’s anus and photographed same. Third, in respect of counts 40 - 42, the applicant possessed child exploitation material and used a carriage service to access child pornography and child abuse material. Some 7,100 images and videos were located. The child victims were predominantly males between infants and eight years of age. The material showed anal sex, oral sex, and vaginal rapes of female children, by adult offenders. A small portion of the material was particularly heinous showing bondage, discipline, sadism, masochism, and humiliation of children. In some accompanying audio, children crying in pain could be heard. The collection of material had been started by the applicant about two years prior to the first of the contact offending.

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

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CITATION:	R v FBG [2024] QCA 131
PARTIES:	R v FBG (applicant)
FILE NO/S:	CA No 225 of 2023 DC No 1145 of 2023 DC No 1766 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 27 October 2023 (Clare SC DCJ)
DELIVERED ON:	26 July 2024
DELIVERED AT:	Brisbane
HEARING DATE:	15 July 2024
JUDGES:	Dalton JA and Hindman and Crowley JJ
ORDER:	The application for leave to appeal is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of maintaining a sexual relationship with a child, thirty-seven counts of indecent treatment of a child, one count of rape, one count of possessing child exploitation material, one count of using a carriage service to access child pornography material and one count of using carriage service to access child abuse material – where the applicant was in a position of trust in relation to the two complainants – where the applicant was sentenced to 11 years’ imprisonment – whether the applicant’s plea of guilty was given sufficient weight – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 161A(a) R v MBJ[2010] QCA 211, considered
COUNSEL:	S A Lynch for the applicant B J Jackson for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent