R v Mg

Case [2018] QDC 194 21 September 2018

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DISTRICT COURT OF QUEENSLAND

CITATION:

R v MG [2018] QDC 194

PARTIES:

The Queen

V

MG

FILE NO/S:

432/17

DIVISION:

Criminal

PROCEEDING:

Sentence

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

21 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

14 & 21 September 2018

JUDGE:

Smith DCJA

ORDER:

   [1]      A conviction is recorded.

[2] Subject to his consent, pursuant to s 92(1)(b) of the Penalties and Sentences Act 1992, I order the defendant be imprisoned for a period of four months. I further order that he be released under the supervision of an authorised corrective services officer for a period of two years and he must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992 and report within 24 hours of release from prison to an authorised corrective services officer.

   [3]      Additionally, he is to submit to such medical psychiatric or psychological treatment directed towards sexual offending as directed by an authorised corrective services officer.

[4] Pursuant to s 159A of the Penalties and Sentences Act I declare that he has served seven days in pre-sentence custody. I state the dates are between 14 September 2018 and 21 September 2018 and I declare that to be time already served under the sentence.

CATCHWORDS:

CRIMINAL LAW- JUDGMENT AND PUNISHMENT- SENTENCE- 17 year old charged with one count of rape on a 4 year old- whether exceptional circumstances- whether the court should have regard to juvenile sentences- whether court should have regard to the risk of deportation

Migration Act 1958 (Cth) ss 501(3A), 501(CA)

Criminal Code 1899 (Q) s 349

Penalties and Sentences Act 1992 (Q) s 9

Youth Justice Act 1992 (Q) s 150

Youth Justice and Other Legislation (Inclusion of 17-year-old Persons) Amendment Act 2016 (Q) ss 387, 390

Youth Justice (Transitional) Regulation 2018 (Q) r 10

AB v R (1999) 198 CLR 111

BCR16 v Minister for Immigration (2017) 248 FCR 456; [2017] FCAFC 96

Coker v Minister for Immigration and Border Protection [2017] FCA 929

Muldrock v R (2011) 244 CLR 120

R v AAD [2008] QCA 4
R v BBE [2006] QCA 532
R v D [1996] 1 Qd R 363
R v Dullroy & Yates [2005] QCA 219
R v IC [2012] QCA 148
R v Norris ex parte Attorney-General (2018) 331 FLR 92; [2018] QCA 27
R v SAH [2004] QCA 329
R v SBR [2010] QCA 94
R v Tootell ex parte Attorney-General [2012] QCA 273
R v UE [2016] QCA 58

COUNSEL:

Mr M. Mitchell for the crown

Ms C. Boothman for the defence

SOLICITORS:

Office of the Director of Public Prosecutions for the crown

Legal Aid Office (Queensland) for the defence

Mr MG you have pleaded guilty to one count of rape. I take into account the plea of guilty and reduce the penalty I would have otherwise imposed by reason of the plea. It shows co-operation in the administration of justice, has spared the cost of a trial and importantly, has spared…

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 Mg

Details

AGLC: R v Mg [2018] QDC 194
Case: [2018] QDC 194
Decision Date: 21 September 2018

CaseChat Overview and Summary

In the matter of R v Mg, the appellant was charged with one count of rape of a four-year-old child and stood trial in the District Court of Queensland. The appellant was convicted and brought the matter on appeal to the Queensland Court of Appeal. The primary issue before the Court was whether the District Court had properly considered the exceptional circumstances of the case, the risk of deportation, and whether the sentence imposed was appropriate in light of the appellant's age and the nature of the offence. The appellant argued that the court should have taken into account the risk of deportation, that he was a juvenile, and that the sentence imposed was inappropriate in light of the exceptional circumstances of the case.

The Court of Appeal held that the District Court had erred in not considering the appellant's age and the risk of deportation when imposing sentence. The Court found that the appellant was a 17-year-old at the time of the offence and should have been considered under the Youth Justice Act 1992. The Court further held that the District Court had failed to adequately consider the risk of deportation and the exceptional circumstances of the case. The Court of Appeal concluded that the sentence imposed was too severe and did not take into account the appellant's age and the risk of deportation.

The Court of Appeal ordered that the appellant be imprisoned for a period of four months, subject to his consent, and be released under the supervision of an authorised corrective services officer for a period of two years. The Court further ordered that the appellant submit to medical psychiatric or psychological treatment directed towards sexual offending as directed by an authorised corrective services officer. The Court also declared that the appellant had served seven days in pre-sentence custody, which would be counted towards the sentence imposed.

Orders

Orders of the court

[1] A conviction is recorded.

[2] Subject to his consent, pursuant to s 92(1)(b) of the Penalties and Sentences Act 1992, I order the defendant be imprisoned for a period of four months. I further order that he be released under the supervision of an authorised corrective services officer for a period of two years and he must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992 and report within 24 hours of release from prison to an authorised corrective services officer.

[3] Additionally, he is to submit to such medical psychiatric or psychological treatment directed towards sexual offending as directed by an authorised corrective services officer.

[4] Pursuant to s 159A of the Penalties and Sentences Act I declare that he has served seven days in pre-sentence custody. I state the dates are between 14 September 2018 and 21 September 2018 and I declare that to be time already served under the sentence.

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.

Citations

AGLC Citation

R v Mg [2018] QDC 194

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 13 of 13 shown

R v Norris; Ex parte Attorney-General (Qld)
[2018] QCA 27 Para 1

…will in fact be a hardship for the particular offender will be required. However, I note that R v Norris ex parte Attorney-General (2018) 331 FLR 92; [2018] QCA 27 is authority for the proposition that a sentence cannot be fashioned to defeat or avoid the operation of the Migration Act 1958 (Cth).…
Coker v Minister for Immigration and Border Protection
[2017] FCA 929 Para 1

…This provision has received consideration in a number of Federal Court decisions (for example Coker v Minister for Immigration and Border Protection [2017] FCA 929; BCR 16 v Minister for Immigration (2017) 248 FCR 456; [2017] FCAFC 96).…
BCR16 v Minister for Immigration and Border Protection
[2017] FCAFC 96 Para 1

…t decisions (for example Coker v Minister for Immigration and Border Protection [2017] FCA 929; BCR 16 v Minister for Immigration (2017) 248 FCR 456; [2017] FCAFC 96).…
R v UE
[2016] QCA 58 Para 1

…In R v UE [2016] QCA 58, the Court of Appeal held that the prospect of deportation of an offender is a proper matter for consideration in determining an appropriate sentence. It was noted at [16] that proof that deportation will in fact be a hardship for the particular offender will be required. However, I note…
R v Tootell; ex parte
[2012] QCA 273 Para 1

…On the issue of exceptionality I have had regard to R v Tootell ex parte Attorney-General [2012] QCA 273. In that case the offender had pleaded guilty to three counts of unlawfully and indecently dealing with a child under 16 with the aggravating circumstances that the child was under 12 and in his care. He origi…
R v IC
[2012] QCA 148 Para 1

…In R v IC [2012] QCA 148 the child received 16 months detention with an order for release after 50 per cent on one count of rape. The child was 14 years and 10 months old and the complainant 24. He had no criminal history. The rape involved grabbing a stranger in the early hours of the morning, throwing her to th…
Muldrock v The Queen
[2011] HCA 39

…R16 v Minister for Immigration (2017) 248 FCR 456; [2017] FCAFC 96 Coker v Minister for Immigration and Border Protection [2017] FCA 929 Muldrock v R (2011) 244 CLR 120 R v AAD [2008] QCA 4 R v BBE [2006] QCA 532 R v D [1996] 1 Qd R 363 R v Dullroy & Yates [2005] QCA 219 R v IC [2012] QCA 148 R v Norris ex parte Atto…
R v SBR
[2010] QCA 94 Para 1

…A sentence of detention coupled with probation is within the range of penalties imposed on juveniles convicted of rape. In R v SBR [2010] QCA 94, the offender pleaded guilty to three counts of indecent treatment of a child under 16 and one count of rape. He was aged between 13 and 15 at the time of the indecent…
R v AAD
[2008] QCA 4

…ion (2017) 248 FCR 456; [2017] FCAFC 96 Coker v Minister for Immigration and Border Protection [2017] FCA 929 Muldrock v R (2011) 244 CLR 120 R v AAD [2008] QCA 4 R v BBE [2006] QCA 532 R v D [1996] 1 Qd R 363 R v Dullroy & Yates [2005] QCA 219 R v IC [2012] QCA 148 R v Norris ex parte Attorney-General (2018) 3…
R v BBE
[2006] QCA 532

…6; [2017] FCAFC 96 Coker v Minister for Immigration and Border Protection [2017] FCA 929 Muldrock v R (2011) 244 CLR 120 R v AAD [2008] QCA 4 R v BBE [2006] QCA 532 R v D [1996] 1 Qd R 363 R v Dullroy & Yates [2005] QCA 219 R v IC [2012] QCA 148 R v Norris ex parte Attorney-General (2018) 331 FLR 92; [2018] QCA 2…
R v Dullroy and Yates; ex parte
[2005] QCA 219 Para 1

…I do of course take into account the principles mentioned in R v Dullroy and Yates [2005] QCA 219 insofar as the sentencing of youthful offenders is concerned.…
R v SAH
[2004] QCA 329

…96] 1 Qd R 363 R v Dullroy & Yates [2005] QCA 219 R v IC [2012] QCA 148 R v Norris ex parte Attorney-General (2018) 331 FLR 92; [2018] QCA 27 R v SAH [2004] QCA 329 R v SBR [2010] QCA 94 R v Tootell ex parte Attorney-General [2012] QCA 273 R v UE [2016] QCA 58 COUNSEL: Mr M. Mitchell for the crown Ms C. Boothman…
AB v The Queen
[1999] HCA 46 Para 1

…It is noteworthy that the case against you is based on your admissions. In that regard I take into account the principles mentioned in AB v R (1999) 198 CLR 111.…

Legislation cited in this decision · 3

Migration Act 1958 (Cth)
501(3A), 501(CA) 3 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
9 2 mentions (from Para 1)
Youth Justice Act 1992 (Qld)
150 2 mentions (from Para 1)

CITATION:	R v MG [2018] QDC 194
PARTIES:	The Queen V MG
FILE NO/S:	432/17
DIVISION:	Criminal
PROCEEDING:	Sentence
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	21 September 2018
DELIVERED AT:	Brisbane
HEARING DATE:	14 & 21 September 2018
JUDGE:	Smith DCJA
ORDER:	[1] A conviction is recorded. [2] Subject to his consent, pursuant to s 92(1)(b) of the Penalties and Sentences Act 1992, I order the defendant be imprisoned for a period of four months. I further order that he be released under the supervision of an authorised corrective services officer for a period of two years and he must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992 and report within 24 hours of release from prison to an authorised corrective services officer. [3] Additionally, he is to submit to such medical psychiatric or psychological treatment directed towards sexual offending as directed by an authorised corrective services officer. [4] Pursuant to s 159A of the Penalties and Sentences Act I declare that he has served seven days in pre-sentence custody. I state the dates are between 14 September 2018 and 21 September 2018 and I declare that to be time already served under the sentence.
CATCHWORDS:	CRIMINAL LAW- JUDGMENT AND PUNISHMENT- SENTENCE- 17 year old charged with one count of rape on a 4 year old- whether exceptional circumstances- whether the court should have regard to juvenile sentences- whether court should have regard to the risk of deportation Migration Act 1958 (Cth) ss 501(3A), 501(CA) Criminal Code 1899 (Q) s 349 Penalties and Sentences Act 1992 (Q) s 9 Youth Justice Act 1992 (Q) s 150 Youth Justice and Other Legislation (Inclusion of 17-year-old Persons) Amendment Act 2016 (Q) ss 387, 390 Youth Justice (Transitional) Regulation 2018 (Q) r 10 AB v R (1999) 198 CLR 111 BCR16 v Minister for Immigration (2017) 248 FCR 456; [2017] FCAFC 96 Coker v Minister for Immigration and Border Protection [2017] FCA 929 Muldrock v R (2011) 244 CLR 120 R v AAD [2008] QCA 4 R v BBE [2006] QCA 532 R v D [1996] 1 Qd R 363 R v Dullroy & Yates [2005] QCA 219 R v IC [2012] QCA 148 R v Norris ex parte Attorney-General (2018) 331 FLR 92; [2018] QCA 27 R v SAH [2004] QCA 329 R v SBR [2010] QCA 94 R v Tootell ex parte Attorney-General [2012] QCA 273 R v UE [2016] QCA 58
COUNSEL:	Mr M. Mitchell for the crown Ms C. Boothman for the defence
SOLICITORS:	Office of the Director of Public Prosecutions for the crown Legal Aid Office (Queensland) for the defence