R v P; ex parte - [2002] QCA 421

SUPREME COURT OF QUEENSLAND

CITATION:

R v P; ex parte A-G [2002] QCA 421

PARTIES:

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

FILE NO/S:

CA No 172 of 2002
DC No 1205 of 2002
DC No 1206 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Sentence by A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EXTEMPORE ON:

10 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

10 October 2002

JUDGES:

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

ORDER:

Appeal allowed.

Vary the sentence imposed at first instance by deleting the order that the sentence be wholly suspended and instead order that the sentence be suspended after the respondent has served four months’ imprisonment. Sentence imposed at first instance otherwise confirmed.

A bench warrant to issue for the arrest of the respondent and lie in the Registry for one week before issue.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent convicted by own plea of 21 counts of indecent treatment of child under 12 and 3 counts of indecent treatment of a child under 17 – where respondent sentenced to 2 years imprisonment wholly suspended with an operational period of three years on all offences – whether sentence manifestly inadequate in the circumstances – where authorities support a term of actual imprisonment

Juvenile Justice Act 1992 (Qld) s 107B

Everett v R; Phillips v R (1994) 181 CLR 295, referred to
R v CCC [2001] QCA 39, CA No 364 of 2000, 15 February 2001, considered
R v J; ex parte A-G [2001] QCA, CA No 5 of 2001, 1 June 2001, considered
R v G; ex parte A-G [1999] QCA 477; CA No 303 of 1999, 16 November 1999, referred to

COUNSEL:

M J Copley for the appellant
P S Hardcastle for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Hemming & Hart for the respondent

THE PRESIDENT: The respondent pleaded guilty to 21 counts of indecent treatment of girls under 12 and three counts of indecent treatment of girls under 17. The charges were contained in two indictments spanning the period from May 1970 until December 1976, although the pleas were accepted on the basis that the offences occurred before the respondent left the family home when he was 18 years old in December 1973.

The respondent was sentenced to two years' imprisonment wholly suspended with an operational period of three years on all offences. The appellant, the Attorney-General of Queensland, contends that this sentence was manifestly inadequate in that it failed to reflect the gravity of the offences, failed to take into account general deterrence and that the sentencing Judge gave too much weight to mitigating factors.

The respondent was…

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 P; ex parte

Details

AGLC: R v P; ex parte [2002] QCA 421
Case: [2002] QCA 421
Decision Date: 10 October 2002

CaseChat Overview and Summary

The appeal before the court was brought by the Attorney-General, seeking to overturn a sentence deemed inadequate by the Crown. The respondent had pleaded guilty to a significant number of counts of indecent treatment of children, specifically 21 counts involving a child under 12 and 3 counts involving a child under 17. The respondent was sentenced to a term of imprisonment of two years, which was wholly suspended, with an operational period of three years. The Crown argued that this sentence did not adequately reflect the gravity of the crimes committed, nor did it serve the necessary purposes of denunciation and deterrence.

The legal issue before the court was whether the sentence imposed was manifestly inadequate. The Crown pointed to various authorities that supported a term of actual imprisonment, arguing that the wholly suspended sentence did not appropriately address the serious nature of the offences. The court was required to consider the principles of sentencing, including the gravity of the offence, the culpability of the offender, and the necessity of deterrence and denunciation, in light of the facts and circumstances of this case.

In its judgment, the court held that the sentence was indeed manifestly inadequate. The court emphasised the gravity of the offences, the number of victims, and the significant breach of trust involved. The wholly suspended sentence was seen as insufficient to serve the purposes of denunciation and deterrence, as well as to appropriately reflect the community's condemnation of the respondent's actions. Consequently, the court allowed the appeal and varied the sentence by ordering that it be suspended after the respondent had served four months' imprisonment. The rest of the sentence, as originally imposed, was otherwise confirmed. The court also ordered a bench warrant to issue for the arrest of the respondent, to lie in the Registry for one week before issue.

Orders

Orders of the court

Appeal allowed.

Vary the sentence imposed at first instance by deleting the order that the sentence be wholly suspended and instead order that the sentence be suspended after the respondent has served four months’ imprisonment. Sentence imposed at first instance otherwise confirmed.

A bench warrant to issue for the arrest of the respondent and lie in the Registry for one week before issue.

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 P; ex parte A-G [2002] QCA 421
PARTIES:	R v P (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 172 of 2002 DC No 1205 of 2002 DC No 1206 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Sentence by A-G (Qld)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EXTEMPORE ON:	10 October 2002
DELIVERED AT:	Brisbane
HEARING DATE:	10 October 2002
JUDGES:	McMurdo P, McPherson JA and Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal allowed. Vary the sentence imposed at first instance by deleting the order that the sentence be wholly suspended and instead order that the sentence be suspended after the respondent has served four months’ imprisonment. Sentence imposed at first instance otherwise confirmed. A bench warrant to issue for the arrest of the respondent and lie in the Registry for one week before issue.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent convicted by own plea of 21 counts of indecent treatment of child under 12 and 3 counts of indecent treatment of a child under 17 – where respondent sentenced to 2 years imprisonment wholly suspended with an operational period of three years on all offences – whether sentence manifestly inadequate in the circumstances – where authorities support a term of actual imprisonment Juvenile Justice Act 1992 (Qld) s 107B Everett v R; Phillips v R (1994) 181 CLR 295, referred to R v CCC [2001] QCA 39, CA No 364 of 2000, 15 February 2001, considered R v J; ex parte A-G [2001] QCA, CA No 5 of 2001, 1 June 2001, considered R v G; ex parte A-G [1999] QCA 477; CA No 303 of 1999, 16 November 1999, referred to
COUNSEL:	M J Copley for the appellant P S Hardcastle for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Hemming & Hart for the respondent