R v Koster

Case [2012] QCA 302

SUPREME COURT OF QUEENSLAND

CITATION:

R v Koster [2012] QCA 302

PARTIES:

R
v
KOSTER, Stephen Frederick
(applicant/appellant)

FILE NO/S:

CA No 191 of 2012
DC No 1131 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

2 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

24 October 2012

JUDGES:

Margaret McMurdo P, Holmes JA and Applegarth J
Separate reasons for judgment of each member of the Court, Margaret McMurdo P and Holmes JA concurring as to the orders made, Applegarth J dissenting

ORDERS:

1.   Application for leave to appeal against sentence granted.

2.   Appeal against sentence allowed.

3.   Sentence varied by suspending it forthwith for the balance of the existing operational period of two years.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – ERROR IN EXERCISE OF SENTENCING DISCRETION – RE-EXERCISE OF SENTENCING DISCRETION – where the appellant pleaded guilty to 10 counts of indecent treatment of a boy under 14 years – where the offences occurred on five separate occasions between January 1983 and June 1983 – where the maximum penalty applicable for the offences was seven years imprisonment – where the appellant was sentenced to 15 months imprisonment suspended after five months with an operational period of two years on all counts – where the appellant had been sentenced in 2003 on pleas of guilty to six counts of indecent treatment of a boy under 16 relating to similar dealings with another complainant in 1984 – where the appellant was sentenced to three years imprisonment suspended after nine months for those offences – where the current charges against the appellant were brought in November 2011 – where the appellant pleaded guilty upon presentation of the indictment of the charges at committal – where the appellant had made changes in his life and demonstrated rehabilitation – where s 9(5)(b) of the Penalties and Sentences Act 1992, inserted in 2010, requires a term of actual imprisonment for offences of a sexual nature against a child, unless there are exceptional circumstances – where the primary judge regarded this section as applicable – whether s 9(5)(b) of the Act applies to offences committed before its commencement – whether a sentence requiring actual imprisonment should be imposed in light of the appellant's previous imprisonment for related offences and rehabilitation

Acts Interpretation Act 1954 (Qld), s 14H, s 20C
Criminal Code (NT), s 14
Criminal Code 1899 (Qld), s 11
Penalties and Sentences Act 1992 (Qld), s 9(5)(b), s 157, s 180, s 204
Penalties and Sentences (Sentencing Advisory Council) Amendment Act 2010 (Qld), s 5

Mill v The Queen (1988) 166 CLR 59, [1988] HCA 70, considered
Olsen v Sims (2010) 28 NTLR 116, [2010] NTCA 8, considered
R v Carlton [2010] 2 Qd R 340, [2009] QCA 241, considered
R v Craig; ex parte A-G (Qld)[2002] QCA 414, considered
R v Kay[1996] QCA 192, considered
R…

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Details
AGLC
R v Koster [2012] QCA 302
Case
[2012] QCA 302
Decision Date

CaseChat Overview and Summary

The appellant in this matter was convicted of ten counts of indecent treatment of a boy under 14 years, which occurred on five separate occasions between January and June 1983. The appellant had previously been sentenced to three years imprisonment, suspended after nine months, for similar offences in 1984. The appellant was subsequently sentenced in the current matter to 15 months imprisonment, suspended after five months, with an operational period of two years. The appellant sought leave to appeal against the sentence, arguing that the sentencing judge erred in exercising their discretion by failing to impose a term of actual imprisonment. The appellant submitted that section 9(5)(b) of the Penalties and Sentences Act 1992, which requires a term of actual imprisonment for offences of a sexual nature against a child, should not apply to offences committed prior to the commencement of the Act.

The court was required to determine whether section 9(5)(b) of the Penalties and Sentences Act 1992 applied to offences committed prior to its commencement and whether a sentence requiring actual imprisonment should be imposed in light of the appellant's previous imprisonment for related offences and rehabilitation. The court held that section 9(5)(b) of the Act applied to offences committed prior to its commencement, but that the sentence should be varied to suspend it forthwith for the balance of the existing operational period of two years. The court found that the appellant had demonstrated significant rehabilitation and that a term of actual imprisonment was not necessary in the circumstances. The court also noted that the appellant had already served a significant period of imprisonment for similar offences in the past and that a suspended sentence was an appropriate outcome in this case.

The court allowed the appeal against sentence and varied the sentence by suspending it forthwith for the balance of the existing operational period of two years. The court granted the appellant leave to appeal against the sentence, finding that the primary judge had erred in exercising their discretion by failing to impose a term of actual imprisonment. The court held that section 9(5)(b) of the Penalties and Sentences Act 1992 applied to offences committed prior to its commencement but that a suspended sentence was appropriate in light of the appellant's previous imprisonment for related offences and rehabilitation. The court also noted that the appellant had demonstrated significant rehabilitation and that a term of actual imprisonment was not necessary in the circumstances.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal against sentence allowed.

3. Sentence varied by suspending it forthwith for the balance of the existing operational period of two years.

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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