R v M; ex parte Attorney-General

SUPREME COURT OF QUEENSLAND

CITATION:

R v M;  ex parte A-G [1999] QCA 442

PARTIES:

R
v

M
(Respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(Appellant)

FILE NO/S:

CA No 251 of 1999
Indictment No 1155 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against sentence by Attorney-General

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

2 November 1999

DELIVERED AT:

Brisbane

HEARING DATE:

8 October 1999

JUDGES:

McPherson and  Davies JJA and Jones J

ORDER:

Appeal allowed.  Sentencing orders imposed in the District Court set aside.  In lieu, respondent to be sentenced in respect of each offence to imprisonment for 18 months with a recommendation that he be considered eligible for parole after six months.  Both sentences to be served concurrently.

CATCHWORDS:

CRIMINAL LAW – OFFENCES AGAINST DECENCY AND MORALITY

JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – intensive correction order – whether a protection order can operate concurrently with a sentence of imprisonment.

Penalties and Sentences Act 1992 s 92, s 112, s 113

R v B;  ex parte Attorney-General [1997] 1 Qd R 523
R v L;  ex parte Attorney-General (CA No 373 of 1998, 3 December 1998)
R v Pham (CA No 435 of 1995, 6 February 1996)
The Queen v Hughes (1998) 100 A Crim R 336
The Queen v Wain (CA No 178 of 1998, 4 August 1998)

COUNSEL:

Mr M Byrne QC for appellant
Mr J McLennan for respondent

SOLICITORS:

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

1. McPHERSON JA:    This is an appeal by the Attorney-General against a sentence imposed in the District Court on the respondent, who pleaded guilty to two counts of indecent treatment of a child under the age of 16 years, coupled in each case with the circumstance of aggravation that the child was under 12 years .  The sentence imposed in respect of count 1 was imprisonment for 12 months to be served by way of an intensive correction order; and, in respect of count 2, probation for three years.  Convictions were recorded, and the learned judge ordered that the respondent undergo psychiatric treatment and counselling as directed.

1. The circumstances of the offence and the personal details of the respondent are set out in the reasons of Jones J, which I have had the advantage of reading.  The first point relied on by Mr Byrne QC on behalf of the Attorney is that a sentence which, as in this case, sought to combine a period of probation with an intensive correction order is not authorised by the Penalties and Sentences Act 1992. In Hughes [1999] 1 QdR 389, 392, it was said that, except to the extent specifically permitted under s 92(1)(b), "it is neither permissible nor proper to make a probation order to operate concurrently with a sentence of imprisonment". Here a sentence of imprisonment for 12 months was imposed, which on the face of it conflicts with what was said in Hughes. However, under s 112 of the Act…