R v Kennings

[2004] QCA 162

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kennings [2004] QCA 162

PARTIES:

R
v
KENNINGS, Matthew William Ross
(applicant/appellant)

FILE NO/S:

CA No 35 of 2004
DC No 307 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

14 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

14 May 2004

JUDGES:

Williams JA, Muir and Mullins JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application for leave to appeal against sentence granted;

2.   Appeal against sentence allowed;

3.   Set aside sentence imposed by the learned sentencing Judge  on 13 February 2004 and, in lieu, sentence applicant to a term of imprisonment  of 18 months to be suspended forthwith, for an operational period of 4 years;

4.   Declare that the 90 days spent in pre-sentence custody between 13 February 2004 and 14 May 2004, be deemed time already served under the sentence;

5.   Confirm the reporting order imposed by the learned sentencing Judge.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – JUDGMENT AND PUNISHMENT- APPEAL AGAINST SENTENCE –APPEAL BY CONVICTED PERSON – APPLICATION TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – SEXUAL OFFENCES –applicant convicted under s 218A Criminal Code (Q) for using the internet to procure a person whom he believed to be under 16 years to engage in a sexual act – applicant sought leave to appeal against sentence of 2 ¹/₂ years suspended after 9 months for an operational period of 4 years – whether the sentence was manifestly excessive in all the circumstances, including the fact that no real child was the recipient of the applicant’s communications, the applicant’s remorse and cooperation with the authorities and his ongoing treatment and prognosis.

Criminal Code 1899 (Qld), s218A
Penalties and Sentences Act 1992 (Qld), s 9(5), s 9(6)

COUNSEL:

B G Devereaux for the applicant/appellant
R G Martin for the respondent

SOLICITORS:

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

WILLIAMS JA:  I will ask Justice Mullins to deliver the first judgment.

MULLINS J:  The applicant pleaded guilty to one count of using the internet to procure a person whom he believed to be under 16 years, to engage in a sexual act.

He was sentenced on 13 February 2004, to a term of imprisonment, of two and one half years, to be suspended after serving nine months' imprisonment, for an operational period of four years.

A reporting order was also made, pursuant to Section 19 of the Criminal Law Amendment Act, 1945, to last for a period of five years after his release from custody.

The applicant is the first person to be sentenced for an offence under Section 218A of the Criminal Code. That provision was inserted in the Code with effect from 1 May 2003.

The applicant was born on 27 November 1977.  The offence was committed when…