R v Lynch - [2011] QCA 309

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lynch [2011] QCA 309

PARTIES:

R
v
LYNCH, Alfred
(applicant)

FILE NO/S:

CA No 228 of 2011
DC No 531 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

4 November 2011

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 2011

JUDGES:

Muir and Chesterman JJA and Margaret Wilson AJA
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.      Sentence varied by reducing the term of imprisonment from 15 months to nine months;

4.      Sentence varied by omitting the order fixing 25 November 2011 as the parole eligibility date;

5.      Declare that the 16 days spent in pre-sentence custody between 8 June 2010 and 23 June 2010 be taken to be time already served under the sentence;

6.      Order that the term of imprisonment is to be suspended after three months with an operational period of three years.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to indecent treatment of a child under 16 – where the applicant was sentenced to 15 months’ imprisonment – where the parole eligibility date was fixed at 25 November 2011 – where the applicant seeks leave to appeal against sentence – whether the sentence imposed was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where counsel for the applicant submitted that the parole eligibility date was illusory as the applicant was required to complete a sexual offenders program which could not be completed before the parole eligibility date – whether in setting a parole eligibility date the sentencing judge denied the applicant procedural fairness

Penalties and Sentences Act 1992 (Qld), s 9, s 92

R v Denboon [1993] QCA 357, considered

COUNSEL:

S A Lynch for the applicant
S P Vasta for the respondent

SOLICITORS:

Walker Pender Group for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: I agree with the reasons of Margaret Wilson AJA and with the orders proposed by her.

CHESTERMAN JA: I agree that the orders proposed by Margaret Wilson AJA should be made for the reasons given by her Honour.

MARGARET WILSON AJA: On 16 March 2011 the applicant pleaded guilty to indecent treatment of a child under 16, and on 12 August 2011 he was sentenced to 15 months’ imprisonment. Sixteen days’ pre-sentence custody was declared time already served. His parole eligibility date was fixed at 25 November 2011.

He seeks leave to appeal against the sentence on the grounds that it was manifestly excessive and that the sentencing judge erred in not affording him procedural fairness.

The facts

The complainant was a girl aged 14 at the time the…

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 Lynch

Details

AGLC: R v Lynch [2011] QCA 309
Case: [2011] QCA 309
Decision Date: 4 November 2011

CaseChat Overview and Summary

The applicant, Lynch, appealed against his sentence for indecent treatment of a child under 16. He had pleaded guilty and was sentenced to 15 months’ imprisonment, with a parole eligibility date of 25 November 2011. Lynch sought leave to appeal against the sentence, arguing it was manifestly excessive and that the parole eligibility date was illusory as he was required to complete a sexual offenders program before becoming eligible for parole.

The court considered whether the sentence was manifestly excessive or inadequate and whether Lynch was denied procedural fairness in the setting of the parole eligibility date. The court acknowledged the seriousness of the offence and the need for deterrence and denunciation, but also took into account Lynch's guilty plea and his cooperation with authorities. The court concluded that the sentence was manifestly excessive, particularly given the requirement to complete the sexual offenders program before becoming eligible for parole. Additionally, the court found that the sentencing judge did not adequately consider the impact of the sexual offenders program on the parole eligibility date, thereby denying Lynch procedural fairness.

The court granted leave to appeal against the sentence and allowed the appeal. The sentence was varied by reducing the term of imprisonment from 15 months to nine months and omitting the order fixing 25 November 2011 as the parole eligibility date. The court declared that the 16 days spent in pre-sentence custody between 8 June 2010 and 23 June 2010 be taken to be time already served under the sentence. The term of imprisonment was suspended after three months with an operational period of three years.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted;

2. Appeal against sentence allowed;

3. Sentence varied by reducing the term of imprisonment from 15 months to nine months;

4. Sentence varied by omitting the order fixing 25 November 2011 as the parole eligibility date;

5. Declare that the 16 days spent in pre-sentence custody between 8 June 2010 and 23 June 2010 be taken to be time already served under the sentence;

6. Order that the term of imprisonment is to be suspended after three months with an operational period of three 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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CITATION:	R v Lynch [2011] QCA 309
PARTIES:	R v LYNCH, Alfred (applicant)
FILE NO/S:	CA No 228 of 2011 DC No 531 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	4 November 2011
DELIVERED AT:	Brisbane
HEARING DATE:	1 November 2011
JUDGES:	Muir and Chesterman JJA and Margaret Wilson AJA 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. Sentence varied by reducing the term of imprisonment from 15 months to nine months; 4. Sentence varied by omitting the order fixing 25 November 2011 as the parole eligibility date; 5. Declare that the 16 days spent in pre-sentence custody between 8 June 2010 and 23 June 2010 be taken to be time already served under the sentence; 6. Order that the term of imprisonment is to be suspended after three months with an operational period of three years.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to indecent treatment of a child under 16 – where the applicant was sentenced to 15 months’ imprisonment – where the parole eligibility date was fixed at 25 November 2011 – where the applicant seeks leave to appeal against sentence – whether the sentence imposed was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where counsel for the applicant submitted that the parole eligibility date was illusory as the applicant was required to complete a sexual offenders program which could not be completed before the parole eligibility date – whether in setting a parole eligibility date the sentencing judge denied the applicant procedural fairness Penalties and Sentences Act 1992 (Qld), s 9, s 92 R v Denboon [1993] QCA 357, considered
COUNSEL:	S A Lynch for the applicant S P Vasta for the respondent
SOLICITORS:	Walker Pender Group for the applicant Director of Public Prosecutions (Queensland) for the respondent