R v MBZ - [2014] QCA 18

SUPREME COURT OF QUEENSLAND

CITATION:

R v MBZ [2014] QCA 18

PARTIES:

R
v
MBZ
(applicant)

FILE NO/S:

CA No 229 of 2013
DC No 168 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

18 February 2014

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2014

JUDGES:

Chief Justice and Gotterson JA and Mullins 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 – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on six counts of indecent treatment of a child under 16 years old – where there were circumstances of aggravation – where the complainant was the applicant’s daughter – where the complainant was under 12 years of age – where the applicant pleaded guilty – where the applicant had an extensive criminal history – where the applicant was sentenced to four years imprisonment – whether the sentence was manifestly excessive

Criminal Code 1899 (Qld), s 210(3), s 210(4)

R v B[2003] QCA 105, distinguished
R v CBG[2013] QCA 44, cited
R v R[2000] QCA 27, considered
R v YD[2002] QCA 489, distinguished

COUNSEL:

The applicant appeared on his own behalf
D C Boyle for the respondent

SOLICITORS:

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

CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Gotterson JA. I agree that the application should be refused, for those reasons.

GOTTERSON JA: The applicant, MBZ, who represents himself in this application, was convicted on six counts of indecent treatment of a child under 16 years of age (Counts 2 to 7 inclusive) at the District Court at Maroochydore on 14 August 2013. The applicant had first pleaded not guilty to these counts and to an additional count of maintaining an unlawful sexual relationship with a child under 16 years of age (Count 1). Once the pleas of guilty had been made, the prosecutor indicated to the court that the Crown would not proceed with Count 1. A two hour adjournment then ensued prior to the taking of submissions on sentence.

The offending on each count for which the applicant was convicted was attended with circumstances of aggravation. The complainant was, to the applicant’s knowledge, his daughter and was under his care at the time: Criminal Code s 210(4). For five of the counts, the offending occurred when the complainant was under 12 years of age: s 210(3). For the other count (Count 7), she was 12 years of age.

The applicant was sentenced on each of Counts 2, 4, 5 and 6 to four years imprisonment and to two years imprisonment on each of Counts 3 and 7. All terms of imprisonment are to be served…

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 MBZ

Details

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

CaseChat Overview and Summary

The applicant was convicted of six counts of indecent treatment of a child under 16 years old. The victim in this case was the applicant’s daughter, who was under 12 years of age at the time of the offences. The applicant had an extensive criminal history and pleaded guilty to the charges. The primary judge sentenced the applicant to four years imprisonment. The applicant sought leave to appeal against the sentence on the grounds that it was manifestly excessive.

The primary issue for the court was whether the sentence was manifestly excessive. The court noted that the primary judge had taken into account the aggravating circumstances of the case, including the fact that the victim was the applicant’s daughter and was under 12 years of age. The court also noted that the applicant had an extensive criminal history. The court held that the primary judge had given adequate consideration to the principles of sentencing and had not erred in law. The court found that the sentence was not manifestly excessive and that there were no grounds for interference.

In reaching its decision, the court considered the principles of sentencing and the relevant aggravating and mitigating factors. The court noted that the primary judge had given careful consideration to the circumstances of the case and had imposed a sentence that was proportionate to the seriousness of the offences. The court held that the sentence was not manifestly excessive and that there were no grounds for interference. The application for leave to appeal against sentence was therefore refused.

The court made no order as to costs.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

Background

Background to the litigation

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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

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CITATION:	R v MBZ [2014] QCA 18
PARTIES:	R v MBZ (applicant)
FILE NO/S:	CA No 229 of 2013 DC No 168 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	18 February 2014
DELIVERED AT:	Brisbane
HEARING DATE:	13 February 2014
JUDGES:	Chief Justice and Gotterson JA and Mullins 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 – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on six counts of indecent treatment of a child under 16 years old – where there were circumstances of aggravation – where the complainant was the applicant’s daughter – where the complainant was under 12 years of age – where the applicant pleaded guilty – where the applicant had an extensive criminal history – where the applicant was sentenced to four years imprisonment – whether the sentence was manifestly excessive Criminal Code 1899 (Qld), s 210(3), s 210(4) R v B[2003] QCA 105, distinguished R v CBG[2013] QCA 44, cited R v R[2000] QCA 27, considered R v YD[2002] QCA 489, distinguished
COUNSEL:	The applicant appeared on his own behalf D C Boyle for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent