R v MBF - [2008] QCA 61

SUPREME COURT OF QUEENSLAND

CITATION:

R v MBF [2008] QCA 61

PARTIES:

R
v
MBF
(applicant)

FILE NO/S:

CA No 329 of 2007
DC No 346 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

26 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

26 March 2008

JUDGES:

Holmes and Fraser JJA and Chesterman J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application for extension of time within which to apply for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to one count of rape and one count of indecent treatment of a child under the age of 16 years – where complainant was applicant’s niece – where offender was an isolated instance while the applicant was affected by alcohol and cannabis sativa – where applicant had no relevant criminal history – where for the most serious conviction (the rape conviction), the applicant was sentenced to three years imprisonment suspended after 12 months – whether in the circumstances the sentence was manifestly excessive

R v M[2003] QCA 443, considered
R v NH [2006] QCA 476, considered
R v SAH [2004] QCA 329, considered

COUNSEL:

The applicant appeared on his own behalf
D A Holiday for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: I will ask Justice Fraser to give his reasons first.
FRASER JA: The applicant was convicted on his plea of guilty to one offence of rape on 18 September 2004 and one offence of indecent treatment of a child under the age of 16 on the same date. He was sentenced in the District Court on 28 August 2007 to three years' imprisonment for the first offence and 12 months' imprisonment for the second offence, the terms of imprisonment to be served concurrently and suspended after 12 months for an operational period of three years.

The applicant has applied for leave to appeal against the sentence. That application was filed on 4 December 2007 about two months out of time. The applicant has therefore also applied for an extension of time.

The grounds of the applicant's application for an extension of time are that his lawyer did not tell him of the time limit for applications and that he did not receive a letter from his solicitor after his sentencing. It is doubtful whether that is an adequate explanation of the applicant's delay in applying for leave to appeal against sentence. I would not be prepared to assume that the applicant did not appreciate or that he should not have appreciated that there was a time limit for appealing against sentence. Nevertheless, as the delay is relatively short and an extension involves no particular prejudice to…

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 MBF

Details

AGLC: R v MBF [2008] QCA 61
Case: [2008] QCA 61
Decision Date: 26 March 2008

CaseChat Overview and Summary

The case of R v MBF was heard in a relevant Australian court where the applicant, MBF, had pleaded guilty to charges of rape and indecent treatment of a child under the age of sixteen. The victim was MBF's niece, and the court had to consider the appropriate sentence for these serious offences. The court was required to assess whether the sentence imposed was appropriate given the circumstances and whether there were grounds for appeal.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive or inadequate, particularly in relation to the rape conviction. The court considered various factors, including MBF's lack of a relevant criminal history, the influence of alcohol and cannabis sativa at the time of the offence, and the fact that this was an isolated incident. The court also had to weigh the severity of the crimes against the potential for rehabilitation and the impact of the sentence on MBF and the victim.

After careful consideration of the evidence and arguments presented, the court found that the sentence imposed was not manifestly excessive. The court acknowledged the severity of the crimes but concluded that the sentence, which included a three-year imprisonment term suspended after twelve months for the rape conviction, was appropriate given the circumstances. The court determined that there were no grounds for interference with the sentence and dismissed the application for an extension of time to appeal against the sentence. Consequently, MBF's application for leave to appeal against the sentence was refused.

Orders

Orders of the court

Application for extension of time within which to apply for leave to appeal against sentence refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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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 MBF [2008] QCA 61
PARTIES:	R v MBF (applicant)
FILE NO/S:	CA No 329 of 2007 DC No 346 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	26 March 2008
DELIVERED AT:	Brisbane
HEARING DATE:	26 March 2008
JUDGES:	Holmes and Fraser JJA and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application for extension of time within which to apply for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to one count of rape and one count of indecent treatment of a child under the age of 16 years – where complainant was applicant’s niece – where offender was an isolated instance while the applicant was affected by alcohol and cannabis sativa – where applicant had no relevant criminal history – where for the most serious conviction (the rape conviction), the applicant was sentenced to three years imprisonment suspended after 12 months – whether in the circumstances the sentence was manifestly excessive R v M[2003] QCA 443, considered R v NH [2006] QCA 476, considered R v SAH [2004] QCA 329, considered
COUNSEL:	The applicant appeared on his own behalf D A Holiday for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent