R v Herford

[2001] QCA 177

SUPREME COURT OF QUEENSLAND

CITATION:

R v Herford  [2001] QCA 177

PARTIES:

R
v
HERFORD, Brian Jephson
(applicant)

FILE NO/S:

CA No 335 of 2000
DC No 1577 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

11 May 2001

DELIVERED AT:

Brisbane

HEARING DATE:

30 April 2001

JUDGES:

McMurdo P, Williams JA, Chesterman J
Separate reasons for judgment of each member of the Court each concurring as to the orders made

ORDER:

1.   Grant leave to appeal;

2.   Allow the appeal;

3.   Set aside the sentence of 10½ years with respect to Count 20 and in lieu thereof order that the applicant be sentenced to imprisonment for a period of 9½ years;

4.   All other orders made at time of sentence should stand.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – OTHER MATTERS – where applicant pleaded guilty to numerous sexual offences against children – where applicant was an ambulance officer with no prior criminal convictions – if sentenced to more than 10 years the applicant would have to serve 80 per cent of the term of imprisonment – the sentencing judge erred in failing to consider the effect on the sentence of Part 9A Penalties and Sentences Act

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 GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – a starting point of 12 years imprisonment is too high for this case – where offences took place over a relatively short period and did not involve violence – a starting point of 11 years is appropriate

Corrective Services Act 1998 (Qld), s 166

Penalties and Sentences Act 1992 (Qld), s 156A, s 161A s 161D

R v Booth [2001] 1 Qd R 393, considered
R v Galley CA No 380 of 1997, 21 November 1997, cited
R v Kingwell CA No 75 of 1993, 13 May 1993, cited

R v Reader [2000] QCA 279; CA No 126 of 2000, 14 July 2000, cited

R v Shillingsworth [2001] QCA 172; CA No 337 of 2000, 11 May 2001, cited

R v Simpson CA No 461 o f 1998, 7 May 1999, cited

COUNSEL:

AW Moynihan for the applicant
D Meredith for the respondent

SOLICITORS:

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

1. McMURDO P:  I have read the reasons for judgment of Williams JA, who sets out the relevant facts and issues.

1. A sentencing judge should be cognisant of whether or not Part 9A of the Penalties & Sentences Act 1992 ("the Act") has application when exercising the sentencing discretion. Failure to recognise the applicability of Part 9A is an error entitling this Court to exercise its discretion afresh: see R v Nguyen.[1]

   [1]CA…