R v Maz - [2008] QCA 110

SUPREME COURT OF QUEENSLAND

CITATION:

R v MAZ [2008] QCA 110

PARTIES:

R
v
MAZ
(applicant/appellant)

FILE NO/S:

CA No 359 of 2007
DC No 85 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

9 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

6 May 2008

JUDGES:

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

ORDER:

1. Grant leave to appeal
2. Allow the appeal to the extent of the Court’s making the following orders:
a) That the penalty of five years’ imprisonment imposed in respect of each of counts 1, 54 and 61 be set aside, and in lieu thereof, the appellant be imprisoned for six months, those terms to be served concurrently with all other terms;
b) that the indictment be amended pursuant to s 572(1) of the Criminal Code by deleting the words ‘a child’ wherever they appear in counts 2-49 and 52 and 53, and substituting in lieu thereof the words ‘a girl’, and by deleting the numeral ‘12’ wherever it appears in those counts and substituting in lieu thereof the numeral ‘14’; and

c) that the appeal is otherwise dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPLICATION TO REDUCE SENTENCE – Where applicant convicted on a number of counts of various offences – For three counts of indecent treatment of a child under 16 years with the circumstance of aggravation applicant sentenced to 10 years imprisonment with parole eligibility after three years and four months – Whether head sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPLICATION TO REDUCE SENTENCE – For the remaining counts applicant was sentenced to five years’ imprisonment to be served concurrently – Where the maximum penalty for common assault was one year – Whether sentence of five years for three counts of common assault was excessive – Whether error should be regarded as material so as to require the Court to exercise the overall sentencing discretion anew

Criminal Code 1899 (Qld), s 216, s 572
Penalties and Sentences Act 1992 (Qld), Part 9A

Baxter v R (2007) 173 A Crim R 284; [2007] NSWCCA 237, considered
R v Benetto, unreported, Supreme Court of Queensland Court of Appeal CA No 367 of 1997, 2 December 1997 considered
R v C; ex parte A-G (Qld) [2003] QCA 510, distinguished
R v Fahey & Ors [2002] 1 Qd R 391; (2001) 121 A Crim R 390; [2001] QCA 082, considered
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered

COUNSEL:

M J Byrne QC for the applicant/appellant
M J Copley for the respondent

SOLICITORS:

Price & Roobottom Solicitors for the applicant/appellant
Director of Public Prosecutions (Queensland) for…

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 Maz

Details

AGLC: R v MAZ [2008] QCA 110
Case: [2008] QCA 110
Decision Date: 9 May 2008

CaseChat Overview and Summary

The appellant, who was convicted on multiple counts of offences, including indecent treatment of a child under 16 years and common assault, appealed against the sentence imposed. The appellant argued that the sentence was manifestly excessive, particularly in relation to the five-year imprisonment for three counts of common assault, where the maximum penalty for such an offence is one year. The Court of Appeal was required to determine whether the sentence was manifestly excessive and, if so, whether any errors should lead to the Court exercising its overall sentencing discretion anew.

The Court of Appeal found that the head sentence of 10 years imprisonment for the three counts of indecent treatment was not manifestly excessive, but the five-year imprisonment for the common assault counts was. The Court held that the error in sentencing was material, as it resulted in a significant departure from the maximum penalty for the offence. Consequently, the Court exercised its overall sentencing discretion and set aside the five-year imprisonment, substituting it with a six-month imprisonment term to be served concurrently with all other terms. The Court also amended the indictment to correct the descriptions of the victims and their ages as per the evidence.

The Court allowed the appeal in part, setting aside the excessive five-year imprisonment sentence and substituting it with a six-month imprisonment term for the common assault counts. The Court also amended the indictment to reflect the correct descriptions of the victims and their ages. The appeal was otherwise dismissed, and the appellant was granted leave to appeal.

Orders

Orders of the court

1. Grant leave to appeal

2. Allow the appeal to the extent of the Court’s making the following orders:

a) That the penalty of five years’ imprisonment imposed in respect of each of counts 1, 54 and 61 be set aside, and in lieu thereof, the appellant be imprisoned for six months, those terms to be served concurrently with all other terms;

b) that the indictment be amended pursuant to s 572(1) of the Criminal Code by deleting the words ‘a child’ wherever they appear in counts 2-49 and 52 and 53, and substituting in lieu thereof the words ‘a girl’, and by deleting the numeral ‘12’ wherever it appears in those counts and substituting in lieu thereof the numeral ‘14’; and

c) that the appeal is otherwise dismissed

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v MAZ [2008] QCA 110
PARTIES:	R v MAZ (applicant/appellant)
FILE NO/S:	CA No 359 of 2007 DC No 85 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	9 May 2008
DELIVERED AT:	Brisbane
HEARING DATE:	6 May 2008
JUDGES:	de Jersey CJ, Keane JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Grant leave to appeal 2. Allow the appeal to the extent of the Court’s making the following orders: a) That the penalty of five years’ imprisonment imposed in respect of each of counts 1, 54 and 61 be set aside, and in lieu thereof, the appellant be imprisoned for six months, those terms to be served concurrently with all other terms; b) that the indictment be amended pursuant to s 572(1) of the Criminal Code by deleting the words ‘a child’ wherever they appear in counts 2-49 and 52 and 53, and substituting in lieu thereof the words ‘a girl’, and by deleting the numeral ‘12’ wherever it appears in those counts and substituting in lieu thereof the numeral ‘14’; and c) that the appeal is otherwise dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPLICATION TO REDUCE SENTENCE – Where applicant convicted on a number of counts of various offences – For three counts of indecent treatment of a child under 16 years with the circumstance of aggravation applicant sentenced to 10 years imprisonment with parole eligibility after three years and four months – Whether head sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPLICATION TO REDUCE SENTENCE – For the remaining counts applicant was sentenced to five years’ imprisonment to be served concurrently – Where the maximum penalty for common assault was one year – Whether sentence of five years for three counts of common assault was excessive – Whether error should be regarded as material so as to require the Court to exercise the overall sentencing discretion anew Criminal Code 1899 (Qld), s 216, s 572 Penalties and Sentences Act 1992 (Qld), Part 9A Baxter v R (2007) 173 A Crim R 284; [2007] NSWCCA 237, considered R v Benetto, unreported, Supreme Court of Queensland Court of Appeal CA No 367 of 1997, 2 December 1997 considered R v C; ex parte A-G (Qld) [2003] QCA 510, distinguished R v Fahey & Ors [2002] 1 Qd R 391; (2001) 121 A Crim R 390; [2001] QCA 082, considered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered
COUNSEL:	M J Byrne QC for the applicant/appellant M J Copley for the respondent
SOLICITORS:	Price & Roobottom Solicitors for the applicant/appellant Director of Public Prosecutions (Queensland) for…