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R v Jones

R v Jones

Case [2011] QCA 147 24 June 2011

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Jones [2011] QCA 147

PARTIES:

R
v
JONES, Ricky Carl
(applicant)

FILE NO:

CA No 62 of 2011
DC No 449 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

24 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

3 June 2011

JUDGES:

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

ORDERS:

Delivered ex tempore on 3 June 2011:

1.     The applicant have leave to appeal against sentence.

2.     The appeal against sentence is allowed.

3.     The sentences imposed on 8 April 2011 are varied as follows:

a)    In respect of count 1, the sentence of 15 months imprisonment is confirmed and it is ordered and directed that the applicant be released forthwith upon his giving security by recognizance in the sum of $2,000, conditioned that he be of good behaviour for a period of two years;

b)   In respect of each of counts 2 and 3, the sentence of 12 months is confirmed and such sentence is suspended forthwith with an operational period of two years during which the applicant must not commit another offence punishable by imprisonment if to avoid being dealt with for the suspended term of imprisonment;

c)   These sentences are to be served concurrently;

d) Direct that the applicant’s legal representatives explain the following matters to him in order to satisfy the requirements of s 16F of the Crimes Act 1914 (Cth):

             i.     He has been sentenced to two years imprisonment but the Court has ordered that he be released immediately upon his entering into a bond of $2,000 requiring that he be of good behaviour for a period of two years;

            ii.     The purpose of that order is to enable him to be released earlier than the full term of his sentence and to provide him with the opportunity to carry out the balance of his punishment in the community;

           iii.     The bond is also conditional upon him being of good behaviour and, if he does not comply with its conditions, he may be brought back to Court and dealt with and depending on the nature of the breach:

1.     A monetary penalty may be imposed;

2.     The length of the bond may be extended;

3.     A community service order or intensive correction order may be imposed; or

4.     If the breach is more serious he may be required to serve the unserved balance of his sentence of imprisonment.

5. He is not required to pay the amount of recognizance of $2,000 but if he breaches the conditions of the recognizance he may, in addition to any of the other consequences that have already been referred to, be required to pay that sum.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his own…

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 Jones

Details

AGLC: R v Jones [2011] QCA 147
Case: [2011] QCA 147
Decision Date: 24 June 2011

CaseChat Overview and Summary

In the case of R v Jones, the applicant, Mr Jones, was convicted on his own plea on one count of the Commonwealth offence of using a carriage service to access child pornography material and two counts of possessing child exploitation material. The applicant was sentenced to 15 months imprisonment for the Commonwealth offence and 12 months imprisonment for each of the State offences, to be served concurrently. The applicant was also released after having served three months on a recognizance of $2,000 for the Commonwealth offence and the sentences for the State offences were suspended after two months with a two year operational period.

The legal issue before the court was whether the sentence imposed by the sentencing judge was manifestly excessive or inadequate. It was submitted that the sentencing judge did not mitigate the sentence to reflect the degree of public shaming the applicant had experienced.

The court found that the sentencing judge had not given sufficient weight to the degree of public shaming the applicant had experienced and that the sentence was manifestly excessive. The court allowed the appeal against sentence and varied the sentences imposed on 8 April 2011. The sentence of 15 months imprisonment for the Commonwealth offence was confirmed and the applicant was ordered to be released forthwith upon giving security by recognizance in the sum of $2,000, conditioned that he be of good behaviour for a period of two years. The sentence of 12 months imprisonment for each of the State offences was also confirmed and suspended forthwith with an operational period of two years during which the applicant must not commit another offence punishable by imprisonment. These sentences are to be served concurrently. The court also directed the applicant’s legal representatives to explain certain matters to him in order to satisfy the requirements of s 16F of the Crimes Act 1914 (Cth).

Orders

Orders of the court

Delivered ex tempore on 3 June 2011:

1. The applicant have leave to appeal against sentence.

2. The appeal against sentence is allowed.

3. The sentences imposed on 8 April 2011 are varied as follows:

a) In respect of count 1, the sentence of 15 months imprisonment is confirmed and it is ordered and directed that the applicant be released forthwith upon his giving security by recognizance in the sum of $2,000, conditioned that he be of good behaviour for a period of two years;

b) In respect of each of counts 2 and 3, the sentence of 12 months is confirmed and such sentence is suspended forthwith with an operational period of two years during which the applicant must not commit another offence punishable by imprisonment if to avoid being dealt with for the suspended term of imprisonment;

c) These sentences are to be served concurrently;

d) Direct that the applicant’s legal representatives explain the following matters to him in order to satisfy the requirements of s 16F of the Crimes Act 1914 (Cth):

i. He has been sentenced to two years imprisonment but the Court has ordered that he be released immediately upon his entering into a bond of $2,000 requiring that he be of good behaviour for a period of two years;

ii. The purpose of that order is to enable him to be released earlier than the full term of his sentence and to provide him with the opportunity to carry out the balance of his punishment in the community;

iii. The bond is also conditional upon him being of good behaviour and, if he does not comply with its conditions, he may be brought back to Court and dealt with and depending on the nature of the breach:

1. A monetary penalty may be imposed;

2. The length of the bond may be extended;

3. A community service order or intensive correction order may be imposed; or

4. If the breach is more serious he may be required to serve the unserved balance of his sentence of imprisonment.

5. He is not required to pay the amount of recognizance of $2,000 but if he breaches the conditions of the recognizance he may, in addition to any of the other consequences that have already been referred to, be required to pay that sum.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Jones [2011] QCA 147

Most Recent Citation

Director of Public Prosecutions v Winter [2022] VCC 227

Cases citing this decision · 8 of 8 shown

R v OAB
[2024] QCA 51 Para 13

…an those in Sperling . The sentencing judge had regard to the sentencing purposes of rehabilitation, general deterrence, and denunciation. [1][2011] QCA 147. [2][2009] QCA 33. [3][2022] QCA 157. [4][2021] QCA 40.…
Director of Public Prosecutions v Winter
[2022] VCC 227

…[6] Cluett v R [2019] WASCA 111; R v Sykes [2009] QCA 267; R v Edwards [2019] QCA 15; R v Jones [2011] QCA 147.…
R v Brincat; Ex parte
[2020] QCA 248 Para 12

…The argument for the Attorney-General cites several decisions of this Court as sentencing yardsticks. The first of them is R v Jones [2011] QCA 147, where a non-custodial sentence was imposed, but where the offender had no prior criminal history, a low prospect of re-offending and where the amount of the material…
R v Edwards
[2019] QCA 15 Para 18

…comparative cases, reference was made to: R v Sykes ,[30] R v Jones ,[31] R v Gordon; Ex parte Cth DPP ,[32] R v Smith .[33] [30][2009] QCA 267. [31][2011] QCA 147. [32][2009] QCA 209. [33][2010] QCA 220.…
R v CHUNZA
[2018] SASCFC 74 Para 37

…son J; Director of Public Prosecutions v D’Alessandro (2010) 26 VR 477 at [19], Harper JA; R v McGaffin [2010] SASCFC 22 at [18], Gray J; R v Jones [2011] QCA 147 at [35], Daubney J. [20] R v Padberg (2010) 107 SASR 386 at [21], Doyle CJ. [21] Ibid.…
R v Formenton
[2018] QCA 77 Para 14

…r for a period of two years in relation to the Commonwealth Offence. Contentions of the applicant [21]AB 34/34-37. [22](2011) 210 A Crim R 317. [23][2011] QCA 147. Commonwealth Offence…
R v Clarke
[2017] QCA 226 Para 18

…148] and R v Wharley [149] in respect of the other offences. [144][2002] QCA 523. [145][2010] QCA 235. [146][2013] QCA 227. [147][2009] QCA 267. [148][2011] QCA 147. [149](2007) 175 A Crim R 253; [2007] QCA 295. Factual background to the offences…
R v Lovi
[2012] QCA 24 Para 1

…reed facts that eight videos and fewer than 200 still images were downloaded. [3] R v Sykes [2009] QCA 267; R v Smith [2010] QCA 220; R v Jones [2011] QCA 147; and R v Verburgt [2009] QCA 33.…

View all 8 citing cases →

Cases cited in this decision · 9 of 9 shown

R v Smith
[2010] QCA 220 Para 1

…period of offending in both of those cases was significantly more than the one day in this case. [6][2009] QCA 267. [7]Per Mullins J at [28]. [8][2010] QCA 220.…
Einfeld v R
[2010] NSWCCA 87

…stly excessive Crimes Act 1914 (Cth), s 16A(2)(g) Penalties and Sentences Act 1992 (Qld), s 9, s 13 Einfeld v R (2010) 266 ALR 598; [2010] NSWCCA 87, considered Kenny v R [2010] NSWCCA 6, cited R v Burdon; ex parte Attorney-General (Qld) (2005) 153 A Crim R 104; [2005] QCA 147, cited R v Jones (1999) 108 A Crim R 5…
Kenny v R
[2010] NSWCCA 6

…16A(2)(g) Penalties and Sentences Act 1992 (Qld), s 9, s 13 Einfeld v R (2010) 266 ALR 598; [2010] NSWCCA 87, considered Kenny v R [2010] NSWCCA 6, cited R v Burdon; ex parte Attorney-General (Qld) (2005) 153 A Crim R 104; [2005] QCA 147, cited R v Jones (1999) 108 A Crim R 50; [1999] WASCA 24, cited R v Liddle […
R v Sykes
[2009] QCA 267 Para 1

…me of which ranged across categories 2-5. The period of offending in both of those cases was significantly more than the one day in this case. [6][2009] QCA 267. [7]Per Mullins J at [28]. [8][2010] QCA 220.…
Einfeld v The Queen (No 2)
[2008] NSWCCA 243

…sentence was manifestly excessive Crimes Act 1914 (Cth), s 16A(2)(g) Penalties and Sentences Act 1992 (Qld), s 9, s 13 Einfeld v R (2010) 266 ALR 598; [2010] NSWCCA 87, considered Kenny v R [2010] NSWCCA 6, cited R v Burdon; ex parte Attorney-General (Qld) (2005) 153 A Crim R 104; [2005] QCA 147, cited R v Jones (19…
R v Liddle
[2006] QCA 45 Para 1

…on (if, indeed, he turned his mind to it) not to mitigate the sentences on account of the pleas of guilty. [1] R v Mallon [1997] QCA 58; R v Liddle [2006] QCA 45.…
R v Burdon; ex parte
[2005] QCA 147

…[2010] NSWCCA 87, considered Kenny v R [2010] NSWCCA 6, cited R v Burdon; ex parte Attorney-General (Qld) (2005) 153 A Crim R 104; [2005] QCA 147, cited R v Jones (1999) 108 A Crim R 50; [1999] WASCA 24, cited R v Liddle [2006] QCA 45, cited R v Mallon [1997] QCA 58, cited R v Smith [2010] QCA 220, cited R v Syk…
R v Jones
[1999] WASCA 24

…cited R v Burdon; ex parte Attorney-General (Qld) (2005) 153 A Crim R 104; [2005] QCA 147, cited R v Jones (1999) 108 A Crim R 50; [1999] WASCA 24, cited R v Liddle [2006] QCA 45, cited R v Mallon [1997] QCA 58, cited R v Smith [2010] QCA 220, cited R v Sykes [2009] QCA 267, cited COUNSEL: S L Kissick for the app…
R v Mallon
[1997] QCA 58 Para 1

…ion for the judge’s decision (if, indeed, he turned his mind to it) not to mitigate the sentences on account of the pleas of guilty. [1] R v Mallon [1997] QCA 58; R v Liddle [2006] QCA 45.…

Legislation cited in this decision · 2

Crimes Act 1914 (Cth)
16A(2)(g) 2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
9 2 mentions

CITATION:	R v Jones [2011] QCA 147
PARTIES:	R v JONES, Ricky Carl (applicant)
FILE NO:	CA No 62 of 2011 DC No 449 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	24 June 2011
DELIVERED AT:	Brisbane
HEARING DATE:	3 June 2011
JUDGES:	Muir and White JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 3 June 2011: 1. The applicant have leave to appeal against sentence. 2. The appeal against sentence is allowed. 3. The sentences imposed on 8 April 2011 are varied as follows: a) In respect of count 1, the sentence of 15 months imprisonment is confirmed and it is ordered and directed that the applicant be released forthwith upon his giving security by recognizance in the sum of $2,000, conditioned that he be of good behaviour for a period of two years; b) In respect of each of counts 2 and 3, the sentence of 12 months is confirmed and such sentence is suspended forthwith with an operational period of two years during which the applicant must not commit another offence punishable by imprisonment if to avoid being dealt with for the suspended term of imprisonment; c) These sentences are to be served concurrently; *d) Direct that the applicant’s legal representatives explain the following matters to him in order to satisfy the requirements of s 16F of the Crimes Act* 1914 (Cth): i. He has been sentenced to two years imprisonment but the Court has ordered that he be released immediately upon his entering into a bond of $2,000 requiring that he be of good behaviour for a period of two years; ii. The purpose of that order is to enable him to be released earlier than the full term of his sentence and to provide him with the opportunity to carry out the balance of his punishment in the community; iii. The bond is also conditional upon him being of good behaviour and, if he does not comply with its conditions, he may be brought back to Court and dealt with and depending on the nature of the breach: 1. A monetary penalty may be imposed; 2. The length of the bond may be extended; 3. A community service order or intensive correction order may be imposed; or 4. If the breach is more serious he may be required to serve the unserved balance of his sentence of imprisonment.** 5. He is not required to pay the amount of recognizance of $2,000 but if he breaches the conditions of the recognizance he may, in addition to any of the other consequences that have already been referred to, be required to pay that sum.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his own…