R v Kelly - [2009] QCA 185

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kelly [2009] QCA 185

PARTIES:

R
v
KELLY, Steven Daniel
(applicant)

FILE NO/S:

CA No 308 of 2008
DC No 195 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

10 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

5 June 2009

JUDGES:

McMurdo P, Keane JA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The application for leave to appeal is granted

2. The appeal is allowed

3. The sentence imposed at first instance is set aside and instead the following orders are made:

a. a conviction is to be recorded

b. the applicant is released under s 30 Penalties and Sentences Act by entering into a recognizance in the sum of $500, conditioned that he keep the peace and be of good behaviour for a period of 12 months

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – applicant pleaded guilty to one count of indecently dealing with a child – applicant put his hand underneath the child's underpants and briefly touched her on the vagina – the child was sleeping and unaware of these events – the applicant suffered extreme guilt, attempted suicide and handed himself to the police – applicant was sentenced to three months imprisonment fully suspended with an operational period of 12 months – sentencing judge also held that the applicant should be subject to the restraints of a reportable offender – whether the sentence was manifestly excessive – whether the judge erred in finding the applicant was a reportable offender

Child Protection (Offender Reporting) Act 2004 (Qld), s 5

Penalties and Sentences Act 1992 (Qld), s 12

R v Gallagher, ex parte Attorney-General [1999] 1 Qd R 200; [1997] QCA 467, cited
R v Inkerman & Attorney-General of Queensland [1997] QCA 316, cited
R v Mason and Saunders [1998] 2 Qd R 186; [1997] QCA 421, cited
R v Mirza; ex parte A-G (Qld) [2008] QCA 23, cited
R v SAT (2006) 170 A Crim R 156; [2006] QCA 70, cited

COUNSEL:

J D Henry SC for the applicant
M Cohen for the respondent

SOLICITORS:

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

McMURDO P: The applicant pleaded guilty on 22 October 2008 to an ex officio indictment charging him with one count of indecently dealing with a child on a date unknown between 30 June 2001 and 17 June 2002 with the circumstances of aggravation that she was under 12 years and in his care. He was sentenced to three months imprisonment suspended forthwith with an operational period of 12 months. He applies for leave to appeal against his sentence, contending that the sentencing judge erred in construing s 5 Child Protection (Offender Reporting) Act 2004 (Qld) ("the Act")…

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 Kelly

Details

AGLC: R v Kelly [2009] QCA 185
Case: [2009] QCA 185
Decision Date: 10 July 2009

CaseChat Overview and Summary

The case of R v Kelly involved the applicant, who pleaded guilty to a charge of indecently dealing with a child under the age of 16 years. The applicant admitted to placing his hand under the child's underpants and touching her on the vagina while she was asleep, an act of which she was unaware. Following his plea, the sentencing judge imposed a sentence of three months imprisonment, fully suspended for 12 months, and required the applicant to be subject to the restraints of a reportable offender. The applicant, who experienced extreme guilt and had attempted suicide before turning himself in to the police, sought leave to appeal against the sentence, arguing that it was manifestly excessive and that the judge had erred in classifying him as a reportable offender.

The legal issues before the court were whether the sentence was manifestly excessive or inadequate and whether the judge had erred in determining that the applicant should be a reportable offender. The applicant's submission was that the sentence was manifestly excessive given the nature of his conduct, his remorse, and the impact of the sentence on his mental health and life circumstances. The court had to consider the principles of sentencing, including the need for deterrence, rehabilitation, and proportionality, and assess whether the sentence imposed by the original judge was appropriate in light of these principles.

In allowing the appeal and setting aside the original sentence, the court found that the sentence was manifestly excessive. The court considered the applicant's remorse, his mental health issues, and the impact of the sentence on his life. The court also found that the judge had erred in classifying the applicant as a reportable offender. The court held that the original sentence did not adequately reflect the mitigating factors and the need for rehabilitation over punishment. The court made orders to record a conviction, release the applicant under section 30 of the Penalties and Sentences Act, and condition this release on the applicant entering into a recognizance of $500 to keep the peace and be of good behaviour for 12 months.

Orders

Orders of the court

1. The application for leave to appeal is granted

2. The appeal is allowed

3. The sentence imposed at first instance is set aside and instead the following orders are made:

a. a conviction is to be recorded

b. the applicant is released under s 30 Penalties and Sentences Act by entering into a recognizance in the sum of $500, conditioned that he keep the peace and be of good behaviour for a period of 12 months

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 Kelly [2009] QCA 185
PARTIES:	R v KELLY, Steven Daniel (applicant)
FILE NO/S:	CA No 308 of 2008 DC No 195 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	10 July 2009
DELIVERED AT:	Brisbane
HEARING DATE:	5 June 2009
JUDGES:	McMurdo P, Keane JA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal is granted 2. The appeal is allowed 3. The sentence imposed at first instance is set aside and instead the following orders are made: a. a conviction is to be recorded b. the applicant is released under s 30 Penalties and Sentences Act by entering into a recognizance in the sum of $500, conditioned that he keep the peace and be of good behaviour for a period of 12 months
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – applicant pleaded guilty to one count of indecently dealing with a child – applicant put his hand underneath the child's underpants and briefly touched her on the vagina – the child was sleeping and unaware of these events – the applicant suffered extreme guilt, attempted suicide and handed himself to the police – applicant was sentenced to three months imprisonment fully suspended with an operational period of 12 months – sentencing judge also held that the applicant should be subject to the restraints of a reportable offender – whether the sentence was manifestly excessive – whether the judge erred in finding the applicant was a reportable offender Child Protection (Offender Reporting) Act 2004 (Qld), s 5 Penalties and Sentences Act 1992 (Qld), s 12 R v Gallagher, ex parte Attorney-General [1999] 1 Qd R 200; [1997] QCA 467, cited R v Inkerman & Attorney-General of Queensland [1997] QCA 316, cited R v Mason and Saunders [1998] 2 Qd R 186; [1997] QCA 421, cited R v Mirza; ex parte A-G (Qld) [2008] QCA 23, cited R v SAT (2006) 170 A Crim R 156; [2006] QCA 70, cited
COUNSEL:	J D Henry SC for the applicant M Cohen for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent