R v. Hardie - [2008] QCA 32

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hardie [2008] QCA 32

PARTIES:

R
v
HARDIE, Matthew James
(applicant)

FILE NO/S:

CA No 12 of 2008
DC No 2993 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

29 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2008

JUDGES:

McMurdo P, Holmes JA and Mackenzie AJA
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 AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – where applicant pleaded guilty to unlawful carnal knowledge of a girl under 16, indecent treatment of a girl under 16, indecent treatment of a girl under 12 and possessing child exploitation material – where 13 offences were committed as part of a consensual relationship between the applicant and his girlfriend aged under 16 years – where 4 offences were committed with the applicant's girlfriend on the girlfriend's nine year old sister – where applicant masturbated in front of nine year old, took digital photographs of girlfriend licking vagina of nine year old and rubbed his penis against the buttocks of nine year old – where applicant sentenced to 6 and 12 months imprisonment to be served concurrently, suspended after 4 months and 2 years probation – where applicant used no force and desisted when nine year old protested – where applicant of below average intelligence – where applicant's relationship with girlfriend had no appropriate boundaries – where applicant remorseful and had good prospects of rehabilitation – whether sentence was manifestly excessive

Juvenile Justice Act 1992 (Qld), s 144
Penalties and Sentences Act 1992 (Qld), s 9(1), s 9(2), s 9(5), s 9(6)

R v BBE [2006] QCA 532; CA No 292 of 2006, 8 December 2006, distinguished
R v F; ex parte A-G (Qld) [2003] QCA 297; CA No 159 of 2003, 16 July 2003, distinguished
R v GO; ex parte A-G (Qld) [2004] QCA 453; CA Nos 201 and 244 of 2004, 26 November 2004, distinguished
R v K; ex parte A-G (Qld) [1997] QCA 427, distinguished

COUNSEL:

J A Griffin QC for the applicant
P J Alsbury for the respondent

SOLICITORS:

Varro Clarke & Co for the applicant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: The applicant pleaded guilty on 13 December 2007 to 2 counts of unlawful carnal knowledge of a child under 16 (counts 1 and 2), 11 counts of indecent treatment of a child under 16 (counts 3 to 13), 3 counts of indecent treatment of child under 12 (counts 14, 15 and 17), and 1 count of possessing child exploitation material (count 16). On counts 1 to 13 a conviction was not recorded and he was placed on two years probation. On count 16 he…

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. Hardie

Details

AGLC: R v Hardie [2008] QCA 32
Case: [2008] QCA 32
Decision Date: 29 February 2008

CaseChat Overview and Summary

The case of R v. Hardie involved the defendant, Hardie, who pleaded guilty to multiple serious offences including unlawful carnal knowledge, indecent treatment, and possession of child exploitation material. The crimes were committed against his under-age girlfriend and her younger sister, aged nine. Hardie's sentence was 6 and 12 months imprisonment, to be served concurrently and suspended after four months, with two years of probation. The Court of Appeal was asked to determine whether this sentence was manifestly excessive.

The key legal issue before the court was whether the sentence imposed was manifestly excessive given the nature of the crimes, the absence of force used, the fact that Hardie desisted when his nine-year-old victim protested, his below-average intelligence, the remorse he showed, and his prospects of rehabilitation. The court had to balance the need to punish and deter such serious offences with the mitigating factors presented.

The court held that while the crimes were indeed heinous and warranted a significant sentence, the mitigating factors presented by Hardie warranted a degree of leniency. The court found that the sentence, while harsh, was not manifestly excessive. The court also noted Hardie's remorse and his prospects of rehabilitation as important factors in arriving at the sentence. The appeal against the sentence was therefore dismissed, and Hardie's sentence was upheld.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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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CITATION:	R v Hardie [2008] QCA 32
PARTIES:	R v HARDIE, Matthew James (applicant)
FILE NO/S:	CA No 12 of 2008 DC No 2993 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	29 February 2008
DELIVERED AT:	Brisbane
HEARING DATE:	18 February 2008
JUDGES:	McMurdo P, Holmes JA and Mackenzie AJA 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 AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – where applicant pleaded guilty to unlawful carnal knowledge of a girl under 16, indecent treatment of a girl under 16, indecent treatment of a girl under 12 and possessing child exploitation material – where 13 offences were committed as part of a consensual relationship between the applicant and his girlfriend aged under 16 years – where 4 offences were committed with the applicant's girlfriend on the girlfriend's nine year old sister – where applicant masturbated in front of nine year old, took digital photographs of girlfriend licking vagina of nine year old and rubbed his penis against the buttocks of nine year old – where applicant sentenced to 6 and 12 months imprisonment to be served concurrently, suspended after 4 months and 2 years probation – where applicant used no force and desisted when nine year old protested – where applicant of below average intelligence – where applicant's relationship with girlfriend had no appropriate boundaries – where applicant remorseful and had good prospects of rehabilitation – whether sentence was manifestly excessive Juvenile Justice Act 1992 (Qld), s 144 Penalties and Sentences Act 1992 (Qld), s 9(1), s 9(2), s 9(5), s 9(6) R v BBE [2006] QCA 532; CA No 292 of 2006, 8 December 2006, distinguished R v F; ex parte A-G (Qld) [2003] QCA 297; CA No 159 of 2003, 16 July 2003, distinguished R v GO; ex parte A-G (Qld) [2004] QCA 453; CA Nos 201 and 244 of 2004, 26 November 2004, distinguished R v K; ex parte A-G (Qld) [1997] QCA 427, distinguished
COUNSEL:	J A Griffin QC for the applicant P J Alsbury for the respondent
SOLICITORS:	Varro Clarke & Co for the applicant Director of Public Prosecutions (Queensland) for the respondent