R v. KT; ex parte A-G (Qld) - [2007] QCA 340

SUPREME COURT OF QUEENSLAND

CITATION:

R v KT; ex parte A-G (Qld) [2007] QCA 340

PARTIES:

R
v
KT
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 231 of 2007
DC No 407 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

15 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2007

JUDGES:

de Jersey CJ, Keane JA and Dutney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal allowed
2. Set aside the penalties imposed in the District Court, and in lieu thereof order in respect of each count that the respondent be imprisoned for 12 months, to be served concurrently. Suspend terms after six months, for an operational period of two years. Declaration as to five days’ pre-sentence custody to remain in place.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent convicted of two counts of indecent treatment of a child under 16 with a circumstance of aggravation – where respondent sentenced to nine months’ imprisonment suspended after two months – where complainant eight years old and respondent 58 years old – where respondent a friend of complainant’s family – where sentencing Judge considered that offence would not significantly damage complainant, and took into account respondent’s military and public service and health issues – whether sufficient weight given to community denunciation and general deterrence – whether denunciation through media publicity should affect term imposed by Court – whether sentence manifestly inadequate

R v L; ex parte A-G (Qld)[1998] QCA 468; CA No 373 of 1998, 3 December 1998, considered
R v Moffat[2003] QCA 95; CA No 439 of 2002, 11 March 2003, considered
R v W[2000] QCA 321; CA No 141 of 2000, 8 August 2000, distinguished

COUNSEL:

M J Copley for the appellant
P Callaghan SC for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Gilshenan & Luton Lawyers for the respondent

THE CHIEF JUSTICE: The Attorney-General appeals against concurrent of nine months' imprisonment suspended after two months for an operational period of two years imposed in respect of two counts of the indecent treatment of a child under 16, with the circumstance of aggravation that the child was under 12. In fact, the child was a boy of eight, and the respondent was then a 58-year old man.

The respondent was a friend of the complainant's family. He stayed at their house at B for a few days in June 2005, in the course of which he slept in the complainant's bedroom. On the first night of the visit, the respondent touched the complainant in the genital or anal area. The respondent touched…

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.

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Details

Case: [2007] QCA 340
Decision Date: 15 October 2007

CaseChat Overview and Summary

In the matter of R v. KT, the respondent was convicted in the District Court of Queensland of two counts of indecent treatment of a child under 16, with an aggravating circumstance. The complainant was eight years old at the time of the offence, while the respondent was 58 years old and a friend of the complainant’s family. The respondent was sentenced to imprisonment for nine months, suspended after two months. The Attorney-General for Queensland appealed against the sentence, arguing that it was manifestly inadequate.

The legal issues before the court were whether the sentencing judge gave sufficient weight to the need for community denunciation and general deterrence, and whether the media publicity surrounding the case should affect the term imposed by the court. The court needed to determine whether the sentence was manifestly inadequate given the nature and circumstances of the offence.

The court held that the sentencing judge did not give sufficient weight to the need for community denunciation and general deterrence. The court noted that the offences were serious and involved a significant age disparity between the respondent and the complainant. The court also held that the media publicity surrounding the case did not affect the term imposed by the court. However, the court found that the sentence was manifestly inadequate given the seriousness of the offences and the need for community denunciation and general deterrence. The court noted that the respondent’s military and public service, as well as his health issues, were relevant considerations, but they did not outweigh the need for an appropriate sentence.

Accordingly, the appeal was allowed, and the penalties imposed in the District Court were set aside. In lieu thereof, the court ordered that the respondent be imprisoned for 12 months, to be served concurrently, and suspended after six months, for an operational period of two years. The declaration as to five days’ pre-sentence custody was to remain in place.

Orders

Orders of the court

1. Appeal allowed

2. Set aside the penalties imposed in the District Court, and in lieu thereof order in respect of each count that the respondent be imprisoned for 12 months, to be served concurrently. Suspend terms after six months, for an operational period of two years. Declaration as to five days’ pre-sentence custody to remain in place.

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.

CITATION:	R v KT; ex parte A-G (Qld) [2007] QCA 340
PARTIES:	R v KT (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 231 of 2007 DC No 407 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	15 October 2007
DELIVERED AT:	Brisbane
HEARING DATE:	15 October 2007
JUDGES:	de Jersey CJ, Keane JA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal allowed 2. Set aside the penalties imposed in the District Court, and in lieu thereof order in respect of each count that the respondent be imprisoned for 12 months, to be served concurrently. Suspend terms after six months, for an operational period of two years. Declaration as to five days’ pre-sentence custody to remain in place.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent convicted of two counts of indecent treatment of a child under 16 with a circumstance of aggravation – where respondent sentenced to nine months’ imprisonment suspended after two months – where complainant eight years old and respondent 58 years old – where respondent a friend of complainant’s family – where sentencing Judge considered that offence would not significantly damage complainant, and took into account respondent’s military and public service and health issues – whether sufficient weight given to community denunciation and general deterrence – whether denunciation through media publicity should affect term imposed by Court – whether sentence manifestly inadequate R v L; ex parte A-G (Qld)[1998] QCA 468; CA No 373 of 1998, 3 December 1998, considered R v Moffat[2003] QCA 95; CA No 439 of 2002, 11 March 2003, considered R v W[2000] QCA 321; CA No 141 of 2000, 8 August 2000, distinguished
COUNSEL:	M J Copley for the appellant P Callaghan SC for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Gilshenan & Luton Lawyers for the respondent