R v N; ex parte - [2003] QCA 391

SUPREME COURT OF QUEENSLAND

CITATION:

R v N; ex parte A-G (Qld) [2003] QCA 391

PARTIES:

R
v
N
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 228 of 2003
DC No 26B of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Maryborough

DELIVERED ON:

12 September 2003

DELIVERED AT:

Brisbane

HEARING DATE:

25 August 2003

JUDGES:

McMurdo P, Jerrard JA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Allow the appeal to the extent of deleting the order that the sentence be suspended after six months and ordering instead that it be suspended after the respondent has served 12 months imprisonment

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where respondent pleaded guilty to unlawful and indecent dealing with a child under 12 who was in his care – where serious breach of trust involved – where nature and number of offences significant – where learned sentencing judge made no reference to respondent’s previous convictions for sexual assaults when sentencing – whether too much weight given to mitigating factors

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent sentenced to two years imprisonment to be suspended after six months with an operational period of three years – where appellant contends that a head sentence of three to three and a half years should have been imposed – where prosecutor at sentence contended that the appropriate head sentence was between 18 months and two years – where this court is limited to imposing a sentence within the range submitted by the prosecutor on sentence save for exceptional circumstances – whether sentence manifestly inadequate

Everett v R (1994) 181 CLR 295, followed
R v B; ex parte A-G (Qld) [1997] 1 Qd R 523, discussed
R v Chambers, Harrison & Fisher; ex parte A-G (Qld) [2002] QCA 534; CA Nos 316, 317 and 318 of 2002, 5 December 2002, referred to
R v G; ex parte A-G (Qld) [1999] QCA 477; CA No 303 of 1999, 16 November 1999, discussed
R v M [1995] QCA 394; CA No 225 of 1995, 27 July 1995, discussed
R v M [1998] QCA 118; CA No 445 of 1998, 13 April 1999, considered
R v P [2001] QCA 130; CA No 4 of 2001, 5 April 2001, considered
R v T; ex parte A-G (Qld) [2001] QCA 398; CA No 18 of 2001, 24 September 2001, discussed
R v Wilde; ex parte A-G (Qld) [2002] QCA 501, CA No 238 of 2002, 15 November 2002, referred to
R v W [2000] QCA 321; CA No 141 of 2000, 8 August…

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 N; ex parte

Details

AGLC: R v N; ex parte [2003] QCA 391
Case: [2003] QCA 391
Decision Date: 12 September 2003

CaseChat Overview and Summary

In the case of R v N; ex parte, the respondent had pleaded guilty to committing unlawful and indecent acts with a child under the age of 12 who was in his care. The nature of the offences involved a serious breach of trust. The legal issue before the court was whether the sentencing judge had appropriately considered all relevant factors in determining the sentence, particularly in light of the respondent’s previous convictions for sexual offences. The Attorney-General appealed, arguing that the sentence imposed was manifestly inadequate.

The court examined the sentencing judge's decision and noted that while the mitigating factors were considered, there was no reference made to the respondent's previous convictions for sexual assaults. The court held that the failure to consider these prior convictions was a significant oversight. The Attorney-General contended that the appropriate head sentence should have been between 18 months and two years, whereas the respondent was sentenced to two years with a suspension after six months. The court found that this sentence was inadequate and fell below the lower end of the range submitted by the prosecutor. Given the nature and severity of the offences, the court concluded that the sentence should not be suspended after six months. Instead, the sentence should be suspended after the respondent has served 12 months imprisonment.

Orders

Orders of the court

Allow the appeal to the extent of deleting the order that the sentence be suspended after six months and ordering instead that it be suspended after the respondent has served 12 months imprisonment

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 N; ex parte A-G (Qld) [2003] QCA 391
PARTIES:	R v N (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 228 of 2003 DC No 26B of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Maryborough
DELIVERED ON:	12 September 2003
DELIVERED AT:	Brisbane
HEARING DATE:	25 August 2003
JUDGES:	McMurdo P, Jerrard JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Allow the appeal to the extent of deleting the order that the sentence be suspended after six months and ordering instead that it be suspended after the respondent has served 12 months imprisonment
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where respondent pleaded guilty to unlawful and indecent dealing with a child under 12 who was in his care – where serious breach of trust involved – where nature and number of offences significant – where learned sentencing judge made no reference to respondent’s previous convictions for sexual assaults when sentencing – whether too much weight given to mitigating factors CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent sentenced to two years imprisonment to be suspended after six months with an operational period of three years – where appellant contends that a head sentence of three to three and a half years should have been imposed – where prosecutor at sentence contended that the appropriate head sentence was between 18 months and two years – where this court is limited to imposing a sentence within the range submitted by the prosecutor on sentence save for exceptional circumstances – whether sentence manifestly inadequate Everett v R (1994) 181 CLR 295, followed R v B; ex parte A-G (Qld) [1997] 1 Qd R 523, discussed R v Chambers, Harrison & Fisher; ex parte A-G (Qld) [2002] QCA 534; CA Nos 316, 317 and 318 of 2002, 5 December 2002, referred to R v G; ex parte A-G (Qld) [1999] QCA 477; CA No 303 of 1999, 16 November 1999, discussed R v M [1995] QCA 394; CA No 225 of 1995, 27 July 1995, discussed R v M [1998] QCA 118; CA No 445 of 1998, 13 April 1999, considered R v P [2001] QCA 130; CA No 4 of 2001, 5 April 2001, considered R v T; ex parte A-G (Qld) [2001] QCA 398; CA No 18 of 2001, 24 September 2001, discussed R v Wilde; ex parte A-G (Qld) [2002] QCA 501, CA No 238 of 2002, 15 November 2002, referred to R v W [2000] QCA 321; CA No 141 of 2000, 8 August…