R v Mara

Case [2009] QCA 208

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mara [2009] QCA 208

PARTIES:

R
v
MARA, Derek Richard
(applicant)

FILE NO/S:

CA No 58 of 2009
DC No 60 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

24 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

10 July 2009

JUDGES:

Chief Justice, Keane JA and Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant was sentenced on his pleas of guilty to offences under s 474.19(1) of the Criminal Code 1995 (Cth) – using a carriage service (the internet) to access child pornography material, using a carriage service (the internet) to cause child pornography material to be transmitted to himself, and using a carriage service (the internet) to transmit child pornography material – where applicant also sentenced on his plea of guilty to an offence under ss 210(1)(f) and 210(3) of the Criminal Code 1899 (Qld) – recording an indecent visual image of a child under the age of 16 years without legitimate reason – where applicant sentenced on counts 1-3 to six years’ imprisonment with a direction that he be released after serving 32 months (i.e. 45% of the head sentence), upon his giving security by recognizance in the sum of $1,000 – where sentenced to six months’ imprisonment on count 4 – where all sentences to be served concurrently – whether sentence manifestly excessive – whether sentencing judge erred in fixing period of actual custody at 45% of head sentence

Commonwealth Constitution, s 80
Criminal Code 1995 (Cth), s 474.19(1)
Criminal Code 1899 (Qld), s 210(1)(f), s 210(3), s 228C and s 228D
Judiciary Act 1903 (Cth), s 68

Bick v The Queen [2006] NSWCCA 408, cited
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22,

cited
James v The Queen [2009] NSWCCA 62, cited
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46,

cited
Ly v R [2007] NSWCCA 28, cited
Putland v The Queen (2004) 218 CLR 74; [2004] HCA 8, cited
R v Bernier (1998) 102 A Crim R 44, cited
R v CAK & CAL; ex parte Cth DPP [2009] QCA 23, applied
R v Carson[2008] QCA 268, cited
R v Colbourn unreported; Supreme Court of Tasmania; 15 August 2008, considered
R v Fulop  unreported; County Court of Victoria; 20 December 2007, considered
R v Gambier [2009] QCA 138, considered
R v Gee (2003) 212 CLR 20; [2003] HCA 12, cited
R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370, applied
R v Jones (1999) 108 A Crim R 50; [1999] WASCA 24, cited
R v KU…

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Details
AGLC
R v Mara [2009] QCA 208
Case
[2009] QCA 208
Decision Date

CaseChat Overview and Summary

The applicant in this case was sentenced on his pleas of guilty to multiple offences under the Criminal Code 1995 (Cth) and the Criminal Code 1899 (Qld), including accessing, causing the transmission of, and transmitting child pornography material using a carriage service. He was also sentenced for recording an indecent visual image of a child under the age of 16 years without legitimate reason. The sentences were imposed as concurrent terms, with the primary sentences being six years' imprisonment on counts 1-3 and six months' imprisonment on count 4. The applicant was released after serving 45% of the primary sentence on counts 1-3, on the condition that he provided security by recognizance in the sum of $1,000.

The primary legal issues before the court were whether the sentence imposed was manifestly excessive or inadequate and whether the sentencing judge erred in fixing the period of actual custody at 45% of the head sentence. The applicant argued that the sentence was manifestly excessive and that the sentencing judge failed to appropriately consider the principles of sentencing, particularly the principle of proportionality.

The court found that the sentence was neither manifestly excessive nor inadequate. The sentencing judge had carefully considered the relevant principles of sentencing, including the principle of proportionality, and had applied them in a manner consistent with the statutory requirements. The court concluded that the sentence was proportionate to the seriousness of the offences committed and that the period of actual custody was appropriately fixed at 45% of the head sentence. The court also found that the sentencing judge did not err in the manner in which he exercised his discretion.

The application for leave to appeal against the sentence was dismissed.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

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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