R v Karlsson

Case [2015] QCA 158

SUPREME COURT OF QUEENSLAND

CITATION:

R v Karlsson [2015] QCA 158

PARTIES:

R
v
KARLSSON, Mark Perti Juhani
(applicant)

FILE NO/S:

CA No 241 of 2014
DC No 430 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:


District Court at Brisbane – Unreported, 4 September 2014

DELIVERED ON:

Orders delivered ex tempore 15 May 2015
Reasons delivered 28 August 2015

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2015

JUDGES:

Carmody CJ and Morrison JA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 15 May 2015:

1.   Application for leave to appeal against sentence refused.

2.   Warrant of apprehension to be issued against the applicant.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE - GENERALLY – where the applicant was found guilty of one count of indecent dealing with a boy under the age of 12 years – where the offence occurred on a date unknown between 11 June 1983 and 13 June 1986 – where the applicant was found not guilty of a further count of indecent treatment of a boy under 12 years – where the applicant was sentenced to six months imprisonment, with the sentence of imprisonment suspended after two months for an operational period of 18 months – where the applicant was aged 30 to 33 at the time the offence occurred, and aged 61 at the time of sentence – where the applicant’s partner was the complainant’s uncle – where it was accepted that the offence was committed in an opportunistic way, whilst severely affected by alcohol, took place over a short space of time and occurred many years ago – where the sentencing judge also noted that the applicant had no criminal convictions, and had otherwise led an exemplary life – where the sentencing judge accepted that general deterrence was not a significant consideration, but that there was a community expectation the sentence would reflect an appropriate level of denunciation – where the applicant filed an application for leave to appeal against the sentence – where the applicant had been released on bail pending the appeal – whether the sentencing judge erred by taking into account, or giving undue weight to a victim impact statement – whether the sentence imposed was manifestly excessive in all the circumstances – whether the sentencing judge erred by taking into account that there had been a plea of not guilty and a trial in circumstances where the applicant was acquitted of the more serious charge at the trial

Criminal Code (Qld), s 668D(1)(c), s 668E(3)
Penalties and Sentences Act 1992 (Qld), s 9(2)(b)(i)
Victims of Crime Assistance Act 2009 (Qld), s 15

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, considered
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, considered
Director of Public Prosecutions v Terrick (2009) 24 VR 457;…

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AGLC
R v Karlsson [2015] QCA 158
Case
[2015] QCA 158
Decision Date

CaseChat Overview and Summary

In the case of R v Karlsson, the applicant appealed against his sentence, which was handed down after he was found guilty of indecent dealing with a boy under the age of 12 years. The applicant was acquitted of a more serious charge of indecent treatment of a boy under 12 years. The offence occurred between 11 June 1983 and 13 June 1986 when the applicant was aged 30 to 33, and the complainant was between nine and 11 years old. The applicant was sentenced to six months imprisonment, suspended after two months, with an operational period of 18 months. The applicant's partner was the complainant's uncle, and both the applicant and his partner were heavily intoxicated during the offence.

The legal issues the court needed to address were whether the sentencing judge erred by considering or giving undue weight to a victim impact statement, whether the sentence imposed was manifestly excessive in all the circumstances, and whether the sentencing judge erred by taking into account that there had been a plea of not guilty and a trial in circumstances where the applicant was acquitted of the more serious charge at the trial. The applicant argued that the victim impact statement focused on the more serious offence for which he was acquitted, and that the impact of the offence for which he was convicted would have been far less.

The court found that the sentencing judge did not err by taking into account or giving undue weight to the victim impact statement. The court held that the victim impact statement was relevant to the sentencing process, and the sentencing judge had considered the statement in context. The court also found that the sentence imposed was not manifestly excessive in all the circumstances. The court noted that the sentencing judge had considered the nature of the offence, the delay in prosecution, the needs of the applicant's partner, and the applicant's remorse. The court held that the sentencing judge did not err by taking into account that there had been a plea of not guilty and a trial in circumstances where the applicant was acquitted of the more serious charge at the trial.

The final orders of the court were that the application for leave to appeal against sentence was refused, and a warrant of apprehension was to be issued against the applicant.

Orders

Orders of the court

Delivered ex tempore on 15 May 2015:

1. Application for leave to appeal against sentence refused.

2. Warrant of apprehension to be issued against the applicant.

Background

Background to the litigation

The application for leave to appeal was heard on 15 May 2015. At the conclusion of that hearing, the Court made orders refusing the application for leave to appeal against sentence, and that a warrant of apprehension issue.[3] The Court indicated reasons for dismissing the application would be given on a later date. These are my reasons for joining in those orders.[3]The applicant had been released on bail pending the appeal.Background At the time the offence occurred, the applicant was aged 30 to 33 years, having been born on 23 March 1953. He was aged 61 at the time of sentence. The complainant was aged between nine and 11 years of age. The offence involved the applicant placing his hands down the complainant’s pants and fondling his genitals in a masturbatory way. The offence occurred at premises in which the complainant was residing with his mother. The applicant’s partner was the complainant’s mother’s brother. Both the applicant and his partner were heavily intoxicated on the night in question. The offence was committed opportunistically, and in a drunken state.Sentencing remarks The sentencing judge accepted the offence was committed in an opportunistic way, whilst the applicant was severely affected by alcohol, took place over a short space of time and occurred many years ago. The sentencing judge also noted the applicant had no criminal convictions, and had otherwise led an exemplary life. He had a good work history and had been in a long-term relationship. Whilst the sentencing judge accepted the long passage of time which had elapsed meant a sentence of general deterrence was not such a significant consideration, the judge stated there was a community expectation the sentence would reflect an appropriate level of denunciation for an offence involving the exploitation by an older man of a young and innocent child. The sentencing judge noted the offending had both an immediate, and a longer-term impact on the complainant. It had impacted on him personally and on his relationship with others. The sentencing judge observed that whilst the victim impact statement had to be read with a degree of caution, many of the matters referred to by the complainant were typical of the impact this level of offending had on young people. In determining what was the appropriate sentence, the sentencing judge recognised the relevance of the delay in the prosecution, the needs of the applicant’s partner (who had undergone recent surgery) and the applicant’s obvious remorse. However, the offence involved a breach of trust. After considering a number of comparable decisions, the sentencing judge found the nature of the offending required the applicant to serve a period in actual custody.Submissions The applicant submitted the sentencing judge gave undue weight to the victim impact statement. When read in context, it was clear the complainant, when describing the impact of the indecent treatment upon him, was making specific reference to the alleged offence for which the applicant was found not guilty. That alleged offence was far more serious, involving an allegation of fellatio. The impact of the offence for which the applicant was convicted would have been far less, and would not have had the same long-term implications.

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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