R v Gibbons - [2013] QCA 201

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gibbons [2013] QCA 201

PARTIES:

R
v
GIBBONS, Jason Mark
(applicant)

FILE NO/S:

CA No 31 of 2013
DC No 327 of 2012
DC No 409 of 2012
DC No 426 of 2012
DC No 438 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

26 July 2013

DELIVERED AT:

Brisbane

HEARING DATE:

17 June 2013

JUDGES:

Muir and Gotterson JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Grant leave to appeal against sentence.
2. Allow the appeal against sentence.

3. Substitute a sentence of two and a half years imprisonment for the sentence of three years imprisonment for each of Counts 1 to 10 on indictment 327 of 2012.

4. With respect to the parole eligibility date substitute 8 September 2013 for 7 November 2013.

5. Otherwise confirm the orders imposed by the sentencing judge.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to 10 counts arising out of a sexual relationship with a child under 16 for which he was sentenced to three years imprisonment for each count to be served concurrently – where the applicant also pleaded guilty to two counts of assault causing bodily harm each with a circumstance of aggravation for which the applicant was sentenced to 18 months imprisonment to be served cumulatively and also three summary offences for which two attracted a period of one month imprisonment and the last attracted a fine – where the applicant contends that the sentence of three years for counts 1 to 10 was manifestly excessive – where the offending was characterised by the fact that the sexual activity was reciprocated from the outset with a willing engagement on the complainant’s part – where comparative cases suggest that a lower head sentence could be imposed – where the prosecution acceded that two and a half years would be an appropriate head sentence – whether the sentence imposed was manifestly excessive – whether the totality principle was considered in the total sentencing of the applicant

Criminal Code 1899 (Qld), s 208, s 210, s 215

R v AS[2004] QCA 220, considered
R v Carmichael & Armbruster[2009] QCA 41, considered
R v Phillips [2009] 2 Qd R 263; [2009] QCA 57, cited
R v Ritchie; ex parte A-G (Qld)[2009] QCA 270, considered
R v T; ex parte Attorney-General of Queensland[2002] QCA 132, considered

COUNSEL:

F D Richards for the applicant
P McCarthy for the respondent

SOLICITORS:

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

MUIR JA: I agree with the reasons of Gotterson JA and with the orders proposed by him.

GOTTERSON JA: On 8 February 2013, the applicant, Jason Mark Gibbons, was…

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 Gibbons

Details

AGLC: R v Gibbons [2013] QCA 201
Case: [2013] QCA 201
Decision Date: 26 July 2013

CaseChat Overview and Summary

In the case of R v Gibbons, the applicant appealed against his sentence, contending that the three-year imprisonment term for each of the ten counts related to a sexual relationship with a child under 16 was manifestly excessive. The applicant had also pleaded guilty to two counts of assault causing bodily harm with circumstances of aggravation, and three summary offences. The court was required to determine whether the sentence was manifestly excessive and whether the totality principle was appropriately considered in the sentencing process. The prosecution conceded that a two-and-a-half-year head sentence would be appropriate.

The court found that the applicant's argument regarding the manifestly excessive nature of the sentence had merit. The court considered that the sexual activity was reciprocated from the outset and was characterised by willing engagement on the part of the complainant. The court noted that the prosecution's concession that a two-and-a-half-year head sentence would be appropriate, along with comparative cases suggesting a lower head sentence could be imposed, supported the applicant's contention. Additionally, the court found that the totality principle was not adequately considered when imposing the sentence.

The court granted leave to appeal against the sentence and allowed the appeal. The sentence of three years imprisonment for each of Counts 1 to 10 was substituted with a sentence of two and a half years imprisonment. The parole eligibility date was also adjusted to 8 September 2013 instead of 7 November 2013. All other orders imposed by the sentencing judge were confirmed.

Orders

Orders of the court

1. Grant leave to appeal against sentence.

2. Allow the appeal against sentence.

3. Substitute a sentence of two and a half years imprisonment for the sentence of three years imprisonment for each of Counts 1 to 10 on indictment 327 of 2012.

4. With respect to the parole eligibility date substitute 8 September 2013 for 7 November 2013.

5. Otherwise confirm the orders imposed by the sentencing judge.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Gibbons [2013] QCA 201
PARTIES:	R v GIBBONS, Jason Mark (applicant)
FILE NO/S:	CA No 31 of 2013 DC No 327 of 2012 DC No 409 of 2012 DC No 426 of 2012 DC No 438 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	26 July 2013
DELIVERED AT:	Brisbane
HEARING DATE:	17 June 2013
JUDGES:	Muir and Gotterson JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant leave to appeal against sentence. 2. Allow the appeal against sentence. 3. Substitute a sentence of two and a half years imprisonment for the sentence of three years imprisonment for each of Counts 1 to 10 on indictment 327 of 2012. 4. With respect to the parole eligibility date substitute 8 September 2013 for 7 November 2013. 5. Otherwise confirm the orders imposed by the sentencing judge.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to 10 counts arising out of a sexual relationship with a child under 16 for which he was sentenced to three years imprisonment for each count to be served concurrently – where the applicant also pleaded guilty to two counts of assault causing bodily harm each with a circumstance of aggravation for which the applicant was sentenced to 18 months imprisonment to be served cumulatively and also three summary offences for which two attracted a period of one month imprisonment and the last attracted a fine – where the applicant contends that the sentence of three years for counts 1 to 10 was manifestly excessive – where the offending was characterised by the fact that the sexual activity was reciprocated from the outset with a willing engagement on the complainant’s part – where comparative cases suggest that a lower head sentence could be imposed – where the prosecution acceded that two and a half years would be an appropriate head sentence – whether the sentence imposed was manifestly excessive – whether the totality principle was considered in the total sentencing of the applicant Criminal Code 1899 (Qld), s 208, s 210, s 215 R v AS[2004] QCA 220, considered R v Carmichael & Armbruster[2009] QCA 41, considered R v Phillips [2009] 2 Qd R 263; [2009] QCA 57, cited R v Ritchie; ex parte A-G (Qld)[2009] QCA 270, considered R v T; ex parte Attorney-General of Queensland[2002] QCA 132, considered
COUNSEL:	F D Richards for the applicant P McCarthy for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent