R v. Mirza; ex parte A-G (Qld) - [2008] QCA 23

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mirza; ex parte A-G (Qld) [2008] QCA 23

PARTIES:

R
v
MIRZA, Shakeel
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 264 of 2007
DC No 661 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Sentence by A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

4 February 2008

JUDGES:

McMurdo P, Holmes JA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – where respondent pleaded guilty to attempted indecent treatment of a child under 12 years – where respondent sentenced to 12 months probation with no conviction recorded – where respondent did not actually touch the child, and desisted when the child objected – where respondent's attempt was not pre-meditated and testimonials suggest it was out of character – where respondent genuinely remorseful – where, if conviction recorded, respondent could face difficulties with continuing his medical studies, gaining employment and registration as a medical practitioner and maintaining his student visa – whether sentence manifestly inadequate – whether trial judge erred in not recording a conviction

Commission for Children and Young People and Child Guardian Act 2000 (Qld), s 102, s 199B
Medical Practitioners Registration Act 2001 (Qld), s 42, s 45(1)(c), s 45(2), s 51
Migration Act 1958 (Cth), s 501
Penalties and Sentences Act 1992 (Qld), s 9(6), s 12, s 90

Gallagher (1997) 98 A Crim R 513, distinguished
R v Moffat [2003] QCA 95; CA No 439 of 2002, 11 March 2003, distinguished
R v Quick; ex parte A-G (2006) 166 A Crim R 588, considered
R v SAT [2006] QCA 70; (2006) 170 A Crim R 156, applied

COUNSEL:

M J Copley for the appellant
B W Farr SC for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Gilshenan and Luton Lawyers for the respondent

McMURDO P: The respondent, Shakeel Mirza, pleaded guilty on 5 September 2007 to one count of attempted indecent treatment of a child with the aggravating circumstance that the child was under 12 years. He was sentenced on 3 October 2007 to 12 months probation with no conviction recorded. The appellant, the Attorney-General of Queensland, appeals against that sentence contending it is manifestly inadequate.

The offence

In August 2005 Mr Mirza, a 25 year old medical student, was participating in a community service club's "uncles and aunties programme" aimed at supporting children under 12 at risk of falling into the social welfare cycle. To participate he had obtained a Queensland "blue card" under the Commission for Children and Young People and Child Guardian Act 2000 (Qld). The programme linked him to the complainant's younger…

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.

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Details

Case: [2008] QCA 23
Decision Date: 22 February 2008

CaseChat Overview and Summary

The appeal against the sentence in this case was brought by the Attorney-General for Queensland against the respondent, Mirza, who had been convicted of attempted indecent treatment of a child under 12 years. Mirza had pleaded guilty and was sentenced to 12 months probation, with no conviction recorded. The Attorney-General sought to challenge the appropriateness of the sentence, arguing that it was manifestly inadequate and that the trial judge had erred in not recording a conviction.

The legal issues before the court included whether the sentence imposed was manifestly inadequate and whether the trial judge had erred in not recording a conviction. The court was required to assess the circumstances of the offence, the character of the offender, and the potential impact of a conviction on Mirza's future. The court also considered whether the sentence was disproportionate to the crime committed and whether the failure to record a conviction was an error of law.

The court found that while the sentence was lenient, it was not manifestly inadequate in the circumstances of the case. The respondent had not actually touched the child and had desisted when the child objected. The attempt was not pre-meditated, and testimonials suggested it was out of character. Mirza was genuinely remorseful and faced significant difficulties if a conviction were recorded, including potential issues with continuing his medical studies, gaining employment, registration as a medical practitioner, and maintaining his student visa. The court held that the trial judge had not erred in imposing the sentence of probation with no conviction recorded.

The court refused the appeal against the sentence, affirming the trial judge's decision. The court recognised the mitigating factors and the potential impact of a conviction on Mirza's future but found that the sentence was appropriate given the circumstances of the offence and the offender.

Orders

Orders of the court

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 Mirza; ex parte A-G (Qld) [2008] QCA 23
PARTIES:	R v MIRZA, Shakeel (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 264 of 2007 DC No 661 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Sentence by A-G (Qld)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	22 February 2008
DELIVERED AT:	Brisbane
HEARING DATE:	4 February 2008
JUDGES:	McMurdo P, Holmes JA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – where respondent pleaded guilty to attempted indecent treatment of a child under 12 years – where respondent sentenced to 12 months probation with no conviction recorded – where respondent did not actually touch the child, and desisted when the child objected – where respondent's attempt was not pre-meditated and testimonials suggest it was out of character – where respondent genuinely remorseful – where, if conviction recorded, respondent could face difficulties with continuing his medical studies, gaining employment and registration as a medical practitioner and maintaining his student visa – whether sentence manifestly inadequate – whether trial judge erred in not recording a conviction Commission for Children and Young People and Child Guardian Act 2000 (Qld), s 102, s 199B Medical Practitioners Registration Act 2001 (Qld), s 42, s 45(1)(c), s 45(2), s 51 Migration Act 1958 (Cth), s 501 Penalties and Sentences Act 1992 (Qld), s 9(6), s 12, s 90 Gallagher (1997) 98 A Crim R 513, distinguished R v Moffat [2003] QCA 95; CA No 439 of 2002, 11 March 2003, distinguished R v Quick; ex parte A-G (2006) 166 A Crim R 588, considered R v SAT [2006] QCA 70; (2006) 170 A Crim R 156, applied
COUNSEL:	M J Copley for the appellant B W Farr SC for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Gilshenan and Luton Lawyers for the respondent