R v. GAA ; ex parte A-G (Qld) - [2007] QCA 288

SUPREME COURT OF QUEENSLAND

CITATION:

R v GAA; ex parte A-G (Qld) [2007] QCA 288

PARTIES:

R
v
GAA
(respondent)
EX PARTE ATTORNEY GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 157 of 2007
DC No 35 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED ON:

7 September 2007

DELIVERED AT:

Brisbane

HEARING DATE:

29 August 2007

JUDGES:

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

ORDER:

Appeal allowed to the limited extent of setting aside the sentence imposed on count 7 and instead order: 1.

That the respondent be admitted to probation for three years on the terms and conditions set out in s 93 Penalties & Sentences Act 1992 (Qld) together with a special condition that he receive medical, psychiatric and psychological counselling and treatment as directed by his probation officer a)

He is to report to the probation office at Bundaberg within seven days of the delivery of these reasons for judgmentb)

A conviction is recordedc)

2.In respect of the summary offences against the Child Protection (Offender Reporting) Act 2004 (Qld) the respondent is convicted but not further punished

3.The sentences imposed on 18 June 2007 are otherwise confirmed

4.The non-contact order and the orders relating to the photos and the computer made on 15 June 2007 are also confirmed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where the respondent pleaded guilty to four counts of indecent treatment of a child under 12 years and one count of possessing child exploitation material – where the respondent also committed two summary offences under the Child Protection (Offender Reporting) Act 2004 (Qld) – where the sentence was re-opened under s 188 Penalties & Sentences Act 1992 (Qld) and varied because the sentencing judge fixed a parole release date for sexual offences not permitted under s 160B Penalties & Sentences Act 1992 (Qld) – where the appellant contended that the sentence was manifestly inadequate – where there was an error of law in imposing an intensive correction order because the total period of imprisonment exceeded 12 months (s 118 Penalties & Sentences Act) – whether this Court was required to re-sentence the respondent

Child Protection (Offender Reporting) Act 2004 (Qld), s 36(1)(c)(iii)
Criminal Code 1899 (Qld), s 651
Penalties & Sentences Act 1992 (Qld), s 93, s 118, s 188, s 189

Everett v The Queen (1994) 181 CLR 295, considered
GAS v The Queen (2004) 217 CLR 198, considered
R v Murray[2006] QCA 516; CA No 291 of 2006, 6 December 2006, distinguished

COUNSEL:

M R Byrne for the appellant
A W Moynihan SC for the respondent

SOLICITORS:

Director of Public…

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.

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Details

Case: [2007] QCA 288
Decision Date: 7 September 2007

CaseChat Overview and Summary

The respondent in this case was convicted on four counts of indecent treatment of a child under 12 years and one count of possessing child exploitation material. The respondent also committed two summary offences under the Child Protection (Offender Reporting) Act 2004 (Qld). The Attorney-General for Queensland appealed against the sentence on the basis that it was manifestly inadequate, and that there was an error of law in imposing an intensive correction order because the total period of imprisonment exceeded 12 months. The court was required to determine whether it was required to re-sentence the respondent.

The court found that the sentence was inadequate and that there was an error of law in imposing an intensive correction order. The court noted that the sentencing judge had fixed a parole release date for sexual offences not permitted under s 160B Penalties & Sentences Act 1992 (Qld). The court found that the sentence imposed on count 7 was manifestly inadequate and set it aside. The court ordered that the respondent be admitted to probation for three years with special conditions that he receive medical, psychiatric and psychological counselling and treatment as directed by his probation officer. The court also confirmed the sentences imposed on 18 June 2007 and the non-contact order and the orders relating to the photos and the computer made on 15 June 2007.

The court found that the respondent is convicted but not further punished in respect of the summary offences against the Child Protection (Offender Reporting) Act 2004 (Qld). The court found that the sentences imposed on 18 June 2007 were otherwise confirmed. The court found that the Attorney-General's appeal was allowed to the limited extent of setting aside the sentence imposed on count 7 and instead ordering that the respondent be admitted to probation for three years on the terms and conditions set out in s 93 Penalties & Sentences Act 1992 (Qld) together with a special condition that he receive medical, psychiatric and psychological counselling and treatment as directed by his probation officer.

The final orders of the court were that the sentence imposed on count 7 be set aside and instead the respondent be admitted to probation for three years on the terms and conditions set out in s 93 Penalties & Sentences Act 1992 (Qld) together with a special condition that he receive medical, psychiatric and psychological counselling and treatment as directed by his probation officer. In respect of the summary offences against the Child Protection (Offender Reporting) Act 2004 (Qld) the respondent is convicted but not further punished. The sentences imposed on 18 June 2007 are otherwise confirmed and the non-contact order and the orders relating to the photos and the computer made on 15 June 2007 are also confirmed.

Orders

Orders of the court

Appeal allowed to the limited extent of setting aside the sentence imposed on count 7 and instead order: 1.

That the respondent be admitted to probation for three years on the terms and conditions set out in s 93 Penalties & Sentences Act 1992 (Qld) together with a special condition that he receive medical, psychiatric and psychological counselling and treatment as directed by his probation officer a)

He is to report to the probation office at Bundaberg within seven days of the delivery of these reasons for judgmentb)

A conviction is recordedc)

2.In respect of the summary offences against the Child Protection (Offender Reporting) Act 2004 (Qld) the respondent is convicted but not further punished

3.The sentences imposed on 18 June 2007 are otherwise confirmed

4.The non-contact order and the orders relating to the photos and the computer made on 15 June 2007 are also confirmed

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.

CITATION:	R v GAA; ex parte A-G (Qld) [2007] QCA 288
PARTIES:	R v GAA (respondent) EX PARTE ATTORNEY GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 157 of 2007 DC No 35 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Bundaberg
DELIVERED ON:	7 September 2007
DELIVERED AT:	Brisbane
HEARING DATE:	29 August 2007
JUDGES:	McMurdo P, Keane JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal allowed to the limited extent of setting aside the sentence imposed on count 7 and instead order: 1. That the respondent be admitted to probation for three years on the terms and conditions set out in s 93 Penalties & Sentences Act 1992 (Qld) together with a special condition that he receive medical, psychiatric and psychological counselling and treatment as directed by his probation officer a) He is to report to the probation office at Bundaberg within seven days of the delivery of these reasons for judgmentb) A conviction is recordedc) *2.In respect of the summary offences against the Child Protection (Offender Reporting) Act 2004* (Qld) the respondent is convicted but not further punished 3.The sentences imposed on 18 June 2007 are otherwise confirmed 4.The non-contact order and the orders relating to the photos and the computer made on 15 June 2007 are also confirmed**
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where the respondent pleaded guilty to four counts of indecent treatment of a child under 12 years and one count of possessing child exploitation material – where the respondent also committed two summary offences under the Child Protection (Offender Reporting) Act 2004 (Qld) – where the sentence was re-opened under s 188 Penalties & Sentences Act 1992 (Qld) and varied because the sentencing judge fixed a parole release date for sexual offences not permitted under s 160B Penalties & Sentences Act 1992 (Qld) – where the appellant contended that the sentence was manifestly inadequate – where there was an error of law in imposing an intensive correction order because the total period of imprisonment exceeded 12 months (s 118 Penalties & Sentences Act) – whether this Court was required to re-sentence the respondent Child Protection (Offender Reporting) Act 2004 (Qld), s 36(1)(c)(iii) Criminal Code 1899 (Qld), s 651 Penalties & Sentences Act 1992 (Qld), s 93, s 118, s 188, s 189 Everett v The Queen (1994) 181 CLR 295, considered GAS v The Queen (2004) 217 CLR 198, considered R v Murray[2006] QCA 516; CA No 291 of 2006, 6 December 2006, distinguished
COUNSEL:	M R Byrne for the appellant A W Moynihan SC for the respondent
SOLICITORS:	Director of Public…