SUPREME COURT OF QUEENSLAND
CITATION:
R v Garget-Bennett [2010] QCA 231
PARTIES:
R
v
GARGET-BENNETT, Bradley John
(applicant)FILE NO/S:
CA No 321 of 2009
DC No 275 of 2009DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Southport
DELIVERED ON:
31 August 2010
DELIVERED AT:
Brisbane
HEARING DATE:
1 April 2010
JUDGES:
Holmes JA, and Fryberg and Applegarth JJ
Joint reasons for judgment of Holmes JA and Applegarth J; separate reasons of Fryberg J, dissenting in partORDERS:
Leave is granted to appeal against sentence;1.
The appeal is allowed;2.
The sentence on count 1 is set aside and a sentence of twelve months imprisonment, with release after serving ten months upon recognizance in the sum of $500 conditioned that the applicant be of good behaviour for two years, is substituted;3.
The sentence on count 2 is set aside and a sentence of two years and six months imprisonment, suspended after ten months, with an operational period of two years, is substituted.4.
CATCHWORDS:
CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT OR PRESENTATION – AVERMENTS – UNCERTAINTY, DUPLICITY AND AMBIGUITY – where applicant pleaded guilty to using a carriage service to access child pornography material between 1 March 2005 and 14 September 2008 – where applicant made general admissions that he looked at child pornography material on a daily basis – where applicant admitted to three instances of paying for child exploitation material over the internet – whether offence charged capable of being a continuing offence – whether count latently duplicitous
CRIMINAL APPEAL – 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 (count 1) and one count of knowingly possessing child exploitation material (count 2) – where applicant in possession of 44,197 images and 1,188 videos containing child exploitation material – where applicant sentenced to a head sentence of three and a half years with an effective term of imprisonment of 21 months – where applicant entered an early guilty plea – where applicant sought psychological treatment prior to the intervention of police – where applicant had no previous criminal history – where applicant in a stable de facto relationship – where applicant had been in full time employment – where most comparable case on which sentencing judge relied has since been overturned by the Court of Appeal – whether sentence manifestly excessive
Crimes Act 1914 (Cth), s 16BA, s 19AB
Criminal Code 1995 (Cth), s 474.19
Criminal Code 1899 (Qld), s 228D, s 567(1)
Drugs Misuse Act 1986 (Qld), s 5
Social Security Act 1991 (Cth), s 1347British Motor Syndicate Ltd v Taylor & Son [1900] 1 Ch 577, cited
Cohen v Macefield P/L & Ors [2010] QCA 95, cited
Daly v Medwell (1986) 40 SASR 281, considered;
Dendy v Brinkworth [2006] 97 SASR 407; [2006] SASC 179, cited
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- AGLC
- R v Garget-Bennett [2010] QCA 231
- Case
- [2010] QCA 231
- Decision Date
CaseChat Overview and Summary
The legal issues centred on the nature of the offence charged and the appropriateness of the sentence imposed. The court needed to consider whether the offence was a single act or a continuing offence, and whether the count in the indictment was duplicitous. Additionally, the court had to assess whether the sentence imposed was manifestly excessive or inadequate in light of the applicant's early guilty plea, his lack of criminal history, his stable personal circumstances, and his efforts to seek psychological treatment prior to his arrest.
The court found that the offence charged was capable of being a continuing offence, but this did not render the count duplicitous. Regarding the sentence, the court concluded that the sentence imposed was manifestly excessive. The sentencing judge had relied on a comparable case that had since been overturned by the Court of Appeal. The court allowed the appeal against the sentence, setting aside the original sentences and substituting new sentences that were considered more appropriate under the circumstances.
The final orders of the court included granting leave to appeal against the sentence, allowing the appeal, setting aside the original sentences, and substituting new sentences. The new sentence for the first count was twelve months imprisonment, with release after serving ten months upon recognizance, and for the second count, it was two years and six months imprisonment, suspended after ten months, with an operational period of two years.
Orders
Orders of the court
Leave is granted to appeal against sentence;1.
The appeal is allowed;2.
The sentence on count 1 is set aside and a sentence of twelve months imprisonment, with release after serving ten months upon recognizance in the sum of $500 conditioned that the applicant be of good behaviour for two years, is substituted;3.
The sentence on count 2 is set aside and a sentence of two years and six months imprisonment, suspended after ten months, with an operational period of two years, is substituted.4.
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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