R v Gesler

[2016] QCA 311

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gesler [2016] QCA 311

PARTIES:

R
v
GESLER, Trevor Warren
(applicant)

FILE NO:

CA No 11 of 2016
DC No 289 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Rockhampton – Date of Sentence: 26 November 2015

DELIVERED ON:

25 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2016

JUDGES:

Fraser and Philip McMurdo JJA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted by a jury of burglary by break, sexual assault and supplying a dangerous drug to a minor and was sentenced to four years, three years and 12 months imprisonment respectively – where the applicant was known to the complainant and had become obsessed with her – where the applicant broke into the complainant’s unit and sexually assaulted her – where the applicant later apologised to the complainant and supplied her cannabis – whether the sentence was manifestly excessive in all the circumstances

Criminal Code (Qld), s 1
Penalties and Sentences Act 1992 (Qld), s 9(2)(c)

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
R v Billy[1997] QCA 290, considered
R v Forrester (2008) 180 A Crim R 510; [2008] QCA 12, considered
R v Ramm[2008] QCA 13, considered
R v Troop[2009] QCA 176, considered
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited

COUNSEL:

S L Kissick for the applicant
G J Cummings for the respondent

SOLICITORS:

Bosscher Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

[1]FRASER JA:  I agree with the reasons for judgment of Henry J and the order proposed by his Honour.

[2]PHILIP McMURDO JA:  I agree with Henry J.

[3]HENRY J:  The applicant was convicted by a jury in the Rockhampton District Court of the following offences and sentenced to the following concurrent terms of imprisonment:

Count 1 burglary by break              –       four years imprisonment;

Count 2 sexual assault           –       three years imprisonment;

Count 3 supplying a dangerous

drug (cannabis) to a minor              –       12 months imprisonment.

His parole eligibility date was fixed at 25 November 2017, halfway through the head sentence.

[4]He seeks leave to appeal his sentence on the ground it is manifestly excessive, contending the head sentence ought to have been three rather than four years imprisonment.

Facts

[5]The complainant and applicant both lived in Longreach.  She was aged 17 and he was 48.

[6]The complainant had known the applicant as a family friend for some years, he being the father of her brother’s best friend.  After she moved out of home into a flat the applicant visited her on an increasingly…