R v MBY - [2014] QCA 17

SUPREME COURT OF QUEENSLAND

CITATION:

R v MBY [2014] QCA 17

PARTIES:

R
v
MBY
(applicant)

FILE NO/S:

CA No 249 of 2013
DC No 41 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

18 February 2014

DELIVERED AT:

Brisbane

HEARING DATE:

5 December 2013

JUDGES:

Muir and Morrison JJA and Daubney 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 refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to two counts of rape and one count of maintaining a sexual relationship with a child under 16 years – where the applicant was sentenced to five years imprisonment for the first count of rape, seven years for the second count of rape, and 10 years with a serious violent offence declaration for the maintaining count – where the applicant was the complainant’s father – where the complainant fell pregnant as a result of the second count of rape – where the applicant seeks leave to appeal against the sentence imposed in respect of the maintaining count – where the applicant contends that the learned sentencing judge failed to give regard to the applicant’s deprived upbringing and rehabilitative prospects – whether the learned sentencing judge erred

Penalties and Sentences Act 1992 (Qld), s 9(6)(f)

Bugmy v The Queen (2013) 87 ALJR 1022; [2013] HCA 37, considered
Munda v Western Australia (2013) 87 ALJR 1035; [2013] HCA 38, considered
Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited
R v Bell; ex parte Attorney-General[1994] QCA 220, cited
R v Engert (1995) 84 A Crim R 67, cited
R v Fernando (1992) 76 A Crim R 58, considered
R v KU; ex parte Attorney-General (No 2) [2011] 1 Qd R 439; [2008] QCA 154, considered
Rogers v The Queen (1989) 44 A Crim R 301, cited
Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, cited

COUNSEL:

A Boe for the applicant
S J Farnden for the respondent

SOLICITORS:

Boe Williams Anderson for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: I agree that leave to appeal should be refused for the reasons given by Morrison JA.

MORRISON JA: This is an application for leave to appeal against sentence. The applicant entered a guilty plea to three counts on an indictment and on 26 August 2013 the learned sentencing judge imposed the following concurrent sentences:

(a) count 1 (rape): five years imprisonment;

(b) count 2 (maintaining a sexual relationship with a child under 16): 10 years imprisonment with an automatic declaration that the conviction was for a Serious Violent Offence (“SVO”); and

(c) count 3 (rape): seven years imprisonment.

The application only concerns the sentence imposed…

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 MBY

Details

AGLC: R v MBY [2014] QCA 17
Case: [2014] QCA 17
Decision Date: 18 February 2014

CaseChat Overview and Summary

The case of R v MBY involved the applicant who pleaded guilty to two counts of rape and one count of maintaining a sexual relationship with a child under 16 years. The applicant, who was also the complainant's father, was sentenced to five years imprisonment for the first count of rape, seven years for the second count of rape, and 10 years with a serious violent offence declaration for the maintaining count. The applicant sought leave to appeal against the sentence imposed in respect of the maintaining count, arguing that the sentencing judge failed to consider the applicant's deprived upbringing and rehabilitative prospects.

The legal issues before the court were whether the sentencing judge erred by not taking into account the applicant's deprived upbringing and rehabilitative prospects, and if such errors warranted interference with the sentence. The court needed to examine the principles of sentencing for serious sexual offences and the role of mitigating factors such as the applicant's background and potential for rehabilitation.

In considering the appeal, the court found that while the applicant's deprived upbringing and rehabilitative prospects were relevant factors, they did not significantly mitigate the gravity of the offences committed. The court held that the sentencing judge had appropriately weighed these factors and determined that the sentence was proportionate and just. The appeal against sentence was dismissed, and the application for leave to appeal was refused.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v MBY [2014] QCA 17
PARTIES:	R v MBY (applicant)
FILE NO/S:	CA No 249 of 2013 DC No 41 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	18 February 2014
DELIVERED AT:	Brisbane
HEARING DATE:	5 December 2013
JUDGES:	Muir and Morrison JJA and Daubney 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 refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to two counts of rape and one count of maintaining a sexual relationship with a child under 16 years – where the applicant was sentenced to five years imprisonment for the first count of rape, seven years for the second count of rape, and 10 years with a serious violent offence declaration for the maintaining count – where the applicant was the complainant’s father – where the complainant fell pregnant as a result of the second count of rape – where the applicant seeks leave to appeal against the sentence imposed in respect of the maintaining count – where the applicant contends that the learned sentencing judge failed to give regard to the applicant’s deprived upbringing and rehabilitative prospects – whether the learned sentencing judge erred Penalties and Sentences Act 1992 (Qld), s 9(6)(f) Bugmy v The Queen (2013) 87 ALJR 1022; [2013] HCA 37, considered Munda v Western Australia (2013) 87 ALJR 1035; [2013] HCA 38, considered Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited R v Bell; ex parte Attorney-General[1994] QCA 220, cited R v Engert (1995) 84 A Crim R 67, cited R v Fernando (1992) 76 A Crim R 58, considered R v KU; ex parte Attorney-General (No 2) [2011] 1 Qd R 439; [2008] QCA 154, considered Rogers v The Queen (1989) 44 A Crim R 301, cited Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, cited
COUNSEL:	A Boe for the applicant S J Farnden for the respondent
SOLICITORS:	Boe Williams Anderson for the applicant Director of Public Prosecutions (Queensland) for the respondent