R v GZ - [2007] QCA 225

SUPREME COURT OF QUEENSLAND

CITATION:

R v GZ [2007] QCA 225

PARTIES:

R
v
GZ

(applicant)

FILE NO/S:

CA No 137 of 2007

DC No 797 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

17 July 2007

DELIVERED AT:

Brisbane

HEARING DATE:

17 July 2007

JUDGES:

Williams and Keane JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

1. Application for leave to appeal against sentence dismissed
2. Warrant issue for the arrest of the applicant to lie in the registry for seven days

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant pleaded guilty to attempt without legitimate reason to record an indecent visible image of a child under 16 years with an aggravating circumstance of being a guardian – where applicant sentenced to nine months imprisonment, suspended after two months, with operational period of 12 months – whether requirement of actual custody for part of the sentence made the sentence manifestly excessive

R v Fereiro [2006] QCA 10; CA No 335 of 2005, 6 February 2006, considered
R v Quick, ex parte Attorney-General (Qld) [2006] QCA 477; CA No 277 of 2006, 17 November 2006, considered

COUNSEL:

R A East for the applicant
B G Campbell for the respondent

SOLICITORS:

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

MULLINS J: On 22 June 2007 the applicant pleaded guilty to one count of attempt without legitimate reason to record an indecent visible image of a child under 16 with an aggravating circumstance of being a guardian. He was sentenced to imprisonment for nine months to be suspended after two months for an operational period of 12 months. The applicant applies for leave to appeal against sentence on the ground that the sentence was manifestly excessive by reason of the imposition of an actual custodial component. There is no challenge to the head sentence. The applicant was granted bail pending this application after having served nine days in custody.

The applicant was 54 years old at the time of the offence which was committed in June 2006. He was the stepfather of the complainant who was 13 years old at the time of the offence. The applicant had no relevant prior criminal history. The applicant had become secretly obsessed about his stepdaughter. It was not alleged that he had touched her inappropriately in any way. He installed a video camera in the bathroom on a Friday. The family went away for the weekend.

In order to operate the video camera had to be activated manually. The applicant had not activated the camera, however, before the complainant took her shower on the Monday night. There 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 GZ

Details

AGLC: R v GZ [2007] QCA 225
Case: [2007] QCA 225
Decision Date: 17 July 2007

CaseChat Overview and Summary

In the matter of R v GZ, the applicant appealed against his sentence following a guilty plea to attempting to record an indecent visible image of a child under 16 years, with the aggravating circumstance that he was the child's guardian. The applicant was sentenced to nine months imprisonment, suspended after two months, with an operational period of 12 months. The applicant sought to argue that the requirement for actual custody as part of the sentence rendered it manifestly excessive.

The central issue for the court was whether the requirement for the applicant to serve actual custody as part of his sentence was so excessive as to justify an appeal against the sentence. The court was required to consider the nature and seriousness of the offence, the need for deterrence, and the principle of proportionality in sentencing.

The court dismissed the application for leave to appeal against the sentence. The court held that the sentence was proportionate to the seriousness of the offence, taking into account the aggravating circumstances and the need for deterrence. The court noted that the sentence was not manifestly excessive, and that the requirement for actual custody was appropriate in the circumstances. The court also noted that the applicant had no previous convictions and had shown remorse for his actions. The court held that the sentence was fair and just, and that there were no grounds for an appeal against sentence. The court issued a warrant for the arrest of the applicant to lie in the registry for seven days.

Orders

Orders of the court

1. Application for leave to appeal against sentence dismissed

2. Warrant issue for the arrest of the applicant to lie in the registry for seven days

Background

Background to the litigation

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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 GZ [2007] QCA 225
PARTIES:	R v GZ (applicant)
FILE NO/S:	CA No 137 of 2007 DC No 797 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	17 July 2007
DELIVERED AT:	Brisbane
HEARING DATE:	17 July 2007
JUDGES:	Williams and Keane JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	1. Application for leave to appeal against sentence dismissed 2. Warrant issue for the arrest of the applicant to lie in the registry for seven days
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant pleaded guilty to attempt without legitimate reason to record an indecent visible image of a child under 16 years with an aggravating circumstance of being a guardian – where applicant sentenced to nine months imprisonment, suspended after two months, with operational period of 12 months – whether requirement of actual custody for part of the sentence made the sentence manifestly excessive R v Fereiro [2006] QCA 10; CA No 335 of 2005, 6 February 2006, considered R v Quick, ex parte Attorney-General (Qld) [2006] QCA 477; CA No 277 of 2006, 17 November 2006, considered
COUNSEL:	R A East for the applicant B G Campbell for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Office of the Director of Public Prosecutions (Queensland) for the respondent