R v Hickey - [2011] QCA 385

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hickey [2011] QCA 385

PARTIES:

R
v
HICKEY, Darryl James
(applicant)

FILE NO/S:

CA No 257 of 2011
DC No 66 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

23 December 2011

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2011

JUDGES:

Margaret McMurdo P, Chesterman JA and Mullins 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 applicant pleaded guilty to possession child exploitation material – where applicant in possession of 552 videos of child exploitation material of which almost 88 per cent were in the worst categories showing child/adult penetration and sadism/bestiality – where applicant was sentenced to 18 months’ imprisonment suspended after six months for an operational period of two years – whether sentence was manifestly excessive

Criminal Code 1899 (Qld), s 228D
Penalties and Sentences Act 1992 (Qld), s 9(6A), s 9(6B)

R v MBM [2011] QCA 100, considered
R v Plunkett [2006] QCA 182, considered
R v Vantoosten[2009] QCA 54, considered
R v Verburgt [2009] QCA 33, considered

COUNSEL:

D R Wilson for the applicant
S P Vasta for the respondent

SOLICITORS:

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

MARGARET McMURDO P: The sentence imposed on the applicant, a mature offender who had pleaded guilty and had no prior criminal history, was a heavy one but I am not persuaded it was manifestly excessive. I agree with Mullins J's reasons for refusing the application for leave to appeal against sentence.

CHESTERMAN JA: I agree with Mullins J.

MULLINS J: The applicant pleaded guilty to one count of possessing child exploitation material (CEM) in breach of s 228D of the Criminal Code 1899 (Qld) and was sentenced on 19 August 2011 by the learned District Court judge to imprisonment for a period of 18 months suspended after six months for an operational period of two years. He applies for leave to appeal against the sentence on the ground that it was manifestly excessive.

The circumstances of the offence

A search warrant was executed at the applicant’s premises on 2 September 2009. The police seized 14 hard drives which all contained large quantities of adult pornography, but on nine of those hard drives there were videos classified as CEM. There was a total number of 552 videos of CEM located.

For the purpose of the sentence the CEM was categorised according to categories developed from R v Oliver [2003] 1 Cr App R 28, as expanded by Queensland Police to include category 6 involving animated or virtual characters. Over 80 per cent of the videos fell within the worst categories in that 378 videos (or 68.5 per cent)…

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 Hickey

Details

AGLC: R v Hickey [2011] QCA 385
Case: [2011] QCA 385
Decision Date: 23 December 2011

CaseChat Overview and Summary

In this case, the applicant, Mr Hickey, appealed against the sentence imposed on him after he pleaded guilty to possession of child exploitation material. The matter was heard in the Supreme Court of Victoria, where the primary judge sentenced the applicant to 18 months’ imprisonment, suspended after six months, for an operational period of two years. The applicant sought leave to appeal against the sentence, arguing that it was manifestly excessive.

The court was required to determine whether the sentence was manifestly excessive or inadequate, considering the nature and extent of the offending. The applicant's possession of 552 videos of child exploitation material, almost 88 per cent of which were in the worst categories, was a significant aggravating factor. The court also considered the need for the sentence to reflect the community’s condemnation of the offending and to deter the applicant and others from engaging in similar conduct.

The court concluded that the sentence imposed was not manifestly excessive. It found that the sentence appropriately reflected the seriousness of the offending and the need for general deterrence. The court also noted that the applicant had shown remorse and had cooperated with authorities since his arrest. The court held that the sentence was proportionate to the offending and did not warrant interference on the grounds of manifest excessiveness. Consequently, the application for leave to appeal against the sentence was refused.

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 Hickey [2011] QCA 385
PARTIES:	R v HICKEY, Darryl James (applicant)
FILE NO/S:	CA No 257 of 2011 DC No 66 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	23 December 2011
DELIVERED AT:	Brisbane
HEARING DATE:	28 November 2011
JUDGES:	Margaret McMurdo P, Chesterman JA and Mullins 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 applicant pleaded guilty to possession child exploitation material – where applicant in possession of 552 videos of child exploitation material of which almost 88 per cent were in the worst categories showing child/adult penetration and sadism/bestiality – where applicant was sentenced to 18 months’ imprisonment suspended after six months for an operational period of two years – whether sentence was manifestly excessive Criminal Code 1899 (Qld), s 228D Penalties and Sentences Act 1992 (Qld), s 9(6A), s 9(6B) R v MBM [2011] QCA 100, considered R v Plunkett [2006] QCA 182, considered R v Vantoosten[2009] QCA 54, considered R v Verburgt [2009] QCA 33, considered
COUNSEL:	D R Wilson for the applicant S P Vasta for the respondent
SOLICITORS:	Russo Mahon Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent