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R v Plunkett

R v Plunkett

Case [2006] QCA 182 29 May 2006

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Plunkett [2006] QCA 182

PARTIES:

R
v
PLUNKETT, Paul Christopher
(applicant)

FILE NO/S:

CA No 124 of 2006
DC No 1359 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EXTEMPORE ON:

29 May 2006

DELIVERED AT:

Brisbane

HEARING DATE:

29 May 2006

JUDGES:

de Jersey CJ, Williams and Holmes JJA
Separate reasons for judgment of each member of the Court, de Jersey CJ & Williams JA concurring as to the orders made, Holmes JA dissenting

ORDER:

Application for leave to appeal against sentence is refused

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – APPLICATION TO REDUCE SENTENCE – where the applicant pleaded guilty to knowingly possessing child exploitation material and sentenced to 18 months’ imprisonment suspended after three months for an operational period of 18 months – where Court identified the new approach with the prospect of more substantial penalties – whether s 9(6) of the Penalties and Sentences Act 1992 (Qld) applies – whether the sentence was manifestly excessive

Classification of Computer Games and Images Act 1995 (Qld), s 26
Criminal Code 1899 (Qld), s 228D
Penalties and Sentences Act 1992 (Qld), s 9

R v Cook; ex parte Attorney-General (Qld) [2004] QCA 469; CA No 324 of 2004, 3 December 2004, cited
R v Finch; ex parte A-G (Qld) [2006] QCA 060; CA No 319 of 2005, 10 March 2006, cited
R v Jones (1999) 108 A Crim R 50, cited
R v Reid; ex parte Attorney-General of Queensland [2000] QCA 218; CA No 46 of 2000, 2 June 2000, cited

COUNSEL:

C F C Wilson for the applicant
S G Bain for the respondent

SOLICITORS:

Bell Miller Solicitors for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE: The applicant was on the 19th of May 2006 sentenced to 18 months' imprisonment suspended after three months for an operational period of 18 months.

The offence to which he had pleaded guilty on an ex officio indictment was that on the 6th of December 2005 he knowingly possessed child exploitation material. Section 228D of the Criminal Code which commenced on the 4th of April 2005 provides for that offence and a maximum penalty of five years' imprisonment.

The previously relevant offence was established by section 26(3) of the Classification of Computer Games and Images Act 1995. Its maximum of two years' imprisonment had been criticised in a number of cases as being inadequate.

The Court of Appeal referred to the new provision in Finch [2006] QCA 60, noting the prospect of more substantial penalties. In Reid, (2000) QCA 218 the Court had identified the evil addressed by such provisions as being a feeding of the market for the sexual exploitation, corruption and moral degradation of children.

Mr Wilson, who appeared for the applicant, referred us to Cook [2004] QCA 469, an Attorney's appeal in respect of penalties…

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 Plunkett

Details

AGLC: R v Plunkett [2006] QCA 182
Case: [2006] QCA 182
Decision Date: 29 May 2006

CaseChat Overview and Summary

The case of R v Plunkett involved the applicant, who had pleaded guilty to knowingly possessing child exploitation material. The court sentenced the applicant to 18 months' imprisonment, suspended after three months, for an operational period of 18 months. The applicant applied for leave to appeal against the sentence, arguing that it was manifestly excessive and that section 9(6) of the Penalties and Sentences Act 1992 (Qld) should apply. The court was required to determine whether the new legislative approach warranted a reconsideration of the sentence, given the prospect of more substantial penalties.

The court considered the applicant's arguments and assessed the sentencing principles involved. It acknowledged the new legislative approach that could result in more substantial penalties for such offences. However, the court found that the sentence imposed was within the range of appropriate penalties for the offence. It concluded that the sentence was not manifestly excessive and that section 9(6) of the Penalties and Sentences Act 1992 (Qld) did not apply to the case.

Consequently, the court refused the applicant's application for leave to appeal against the sentence. The reasoning was that the sentence was appropriate in light of the offence and the legislative context. The court held that the sentence did not fall outside the range of penalties that could be considered appropriate, and therefore, the application was unsuccessful. The court's decision effectively upheld the original sentence imposed by the lower court.

Orders

Orders of the court

Application for leave to appeal against sentence is 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

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Plunkett [2006] QCA 182

Most Recent Citation

R v Daw [2006] QCA 386

Cases citing this decision · 16 of 16 shown

R v Devenish
[2016] QDC 236

…ney-General for the State of Queensland v SBD [2010] QSC 104 R v McGrath [2006] 2 Qd R 58 ; [2005] QCA 463 R v Finch [2006] QCA 60 R v Plunkett [2006] QCA 182 Dodge v Attorney General for the State of Queensland (2012) 226 A Crim R 31 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 COUNSEL: Mr G Webber for…
R v Hickey
[2011] QCA 385 Para 1

…A sentence of 18 months’ imprisonment suspended after three months for an operational period of 18 months was not disturbed in R v Plunkett [2006] QCA 182. The offender had downloaded 16,685 images of girls aged 10 to 16 years old posing naked or provocatively, but there were no images involving adults or other s…
R v Hampson
[2011] QCA 132

…al exploitation, corruption and moral degradation of children: R v Reid; ex parte Attorney-General of Queensland [2000] QCA 218, at 8; R v Plunkett [2006] QCA 182 at 3. Indeed, the policy objectives for the new provisions were identified as being “to respond to the growing incidence of child pornography” by inser…
R v Dennison
[2011] NSWCCA 114 Para 32

…nd personal) are particularly powerful considerations in sentencing for child pornography offences. ( R v Carson [2008] QCA 268 at [32]; R v Plunkett [2006] QCA 182 at [6]; R v Wharley [2007] QCA 295 at [17].)…
R v MBM
[2011] QCA 100 Para 1

…the issue was whether a fictional (but “real”) character could fall within the definition. It was held to do so.[17] [14] R v Plunkett [2006] QCA 182; R v Richardson; ex parte A-G [2007] QCA 294; R v Riley [2007] QCA 391; R v Carson [2008] QCA 268; and R v Vantoosten [2009] QCA 54. [15]AR 12-13. [16][2009] QCA 1…
R v Talbot
[2009] TASSC 107 Para 1

…01] VSCA 156; R v Coultas [2002] WASCA 131; Dodge v R (2002) 134 A Crim R 435; R v Cook [2004] QCA 469; R v Gent (2005) 162 A Crim R 29; R v Plunkett [2006] QCA 182; Hutchins v WA [2006] WASCA 258; R v Wheatley [2007] ACTCA 15; R v Richardson ; Ex parte Attorney-General (Qld) (2007) 175 A Crim R 244; R v Wharley…
Colbourn v The Queen
[2009] TASSC 108 Para 1

…01] VSCA 156; R v Coultas [2002] WASCA 131; Dodge v R (2002) 134 A Crim R 435; R v Cook [2004] QCA 469; R v Gent (2005) 162 A Crim R 29; R v Plunkett [2006] QCA 182; Hutchins v WA (supra); R v Wheatley [2007] ACTCA 15; R v Richardson ; Ex parte Attorney-General (Qld) (2007) 175 A Crim R 244; R v Wharley ; Ex part…
R v Mara
[2009] QCA 208 Para 1

…rsonal) are particularly powerful considerations in sentencing for child pornography offences.[3] [3] R v Carson [2008] QCA 268 at [32]; R v Plunkett [2006] QCA 182 at [6]; R v Wharley [2007] QCA 295 at [17].…
R v Vantoosten
[2009] QCA 54 Para 1

…spended after 10 months with an operational period of four years. [1][2009] QCA 10. [2](2007) 175 A Crim R 244; [2007] QCA 294. [3][2007] QCA 391. [4][2006] QCA 182.…
R v. Vantoosten
[2009] QDC 2 Para 1

…ort in the sentencing process. It does not follow that imprisonment is required in each case. The broad discretion still exists. [6]op cit at [16] [7][2006] QCA 182 [8]Hansard 1 May 2008 p 1427…
R v NK
[2008] QCA 403 Para 1

…ed. That conduct must not be overlooked. The authorities stress the importance of deterrence and denunciation for offences of that kind: R v Plunkett [2006] QCA 182 at 3, 6; R v Wharley (2007) 175 A Crim R 253; [2007] QCA 295 at [17]; R v Carson [2008] QCA 268 at [32]. As was said in R v Jones (1999) 108 A Crim R…
R v Carson
[2008] QCA 268 Para 1

…xual exploitation, corruption and moral degradation of children: R v Reid; ex parte Attorney-General of Queensland [2000] QCA 218, at 8; R v Plunkett [2006] QCA 182 at 3. Indeed, the policy objectives for the new provisions were identified as being “to respond to the growing incidence of child pornography” by ins…
R v Salsone; ex parte A-G (Qld)
[2008] QCA 220 Para 1

…was an Attorney's appeal and because Mr Salsone had now completed his 200 hours of community service, a wholly suspended sentence was appropriate. [2][2006] QCA 182. [3](2007) 175 A Crim R 244; [2007] QCA 294. [4](2007) 175 A Crim R 253; [2007] QCA 295. [5][2007] QCA 391.…
R v Riley
[2007] QCA 391 Para 1

…ld proceed on the basis that s 9(2)(a) applied to the present case. [10][2006] QCA 60; CA No 319 of 2005, 17 February 2006. [11]Above, [19]-[20]. [12][2006] QCA 182; CA No 124 of 2006, 29 May 2006.…
R v Wharley
[2007] QCA 295

…06, cited R v Hamilton [2000] QCA 286; CA No 75 of 2000, 21 July 2000, cited R v Jones (1999) 108 A Crim R 50, cited R v Plunkett [2006] QCA 182; CA No 124 of 2006, 29 May 2006, considered COUNSEL: A Moynihan SC for the applicant M R Byrne for the respondent SOLICITORS: Legal Aid Queensland for the applicant Dire…
R v Daw
[2006] QCA 386

…v Hoch; ex parte A-G (Qld) [2001] QCA 63; CA No 337 of 1997, 26 February 2001, considered R v Plunkett [2006] QCA 182; CA No 124 of 2006; 29 May 2006, considered COUNSEL: S L Kissick for the applicant T A Fuller for the respondent SOLICITORS: Ryan and Bosscher for the applicant Director of Public Prosecutions (Q…

View all 16 citing cases →

Cases cited in this decision · 4 of 4 shown

R v Finch; ex parte
[2006] QCA 60

…The Court of Appeal referred to the new provision in Finch [2006] QCA 60, noting the prospect of more substantial penalties. In Reid, (2000) QCA 218 the Court had identified the evil addressed by such provisions as being a feeding of the market for the sexual exploitation, corruption and moral degradation of chi…
R v Cook; ex parte A-G (Qld); R v Cook; ex parte Commonwealth DPP
[2004] QCA 469

…(Qld), s 26 Criminal Code 1899 (Qld), s 228D Penalties and Sentences Act 1992 (Qld), s 9 R v Cook; ex parte Attorney-General (Qld) [2004] QCA 469; CA No 324 of 2004, 3 December 2004, cited R v Finch; ex parte A-G (Qld) [2006] QCA 060; CA No 319 of 2005, 10 March 2006, cited R v Jones (1999) 108 A Crim R 50, cite…
R v Reid; ex parte Attorney-General of Queensland
[2000] QCA 218

…; CA No 319 of 2005, 10 March 2006, cited R v Jones (1999) 108 A Crim R 50, cited R v Reid; ex parte Attorney-General of Queensland [2000] QCA 218; CA No 46 of 2000, 2 June 2000, cited COUNSEL: C F C Wilson for the applicant S G Bain for the respondent SOLICITORS: Bell Miller Solicitors for the applicant Director…
[2006] QCA 060
[2006] QCA 060

…9 R v Cook; ex parte Attorney-General (Qld) [2004] QCA 469; CA No 324 of 2004, 3 December 2004, cited R v Finch; ex parte A-G (Qld) [2006] QCA 060; CA No 319 of 2005, 10 March 2006, cited R v Jones (1999) 108 A Crim R 50, cited R v Reid; ex parte Attorney-General of Queensland [2000] QCA 218; CA No 46 of 2000, 2…

Legislation cited in this decision · 2

Classification of Computer Games and Images Act 1995 (Qld)
26 2 mentions
Penalties and Sentences Act 1992 (Qld)
9 2 mentions

CITATION:	R v Plunkett [2006] QCA 182
PARTIES:	R v PLUNKETT, Paul Christopher (applicant)
FILE NO/S:	CA No 124 of 2006 DC No 1359 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EXTEMPORE ON:	29 May 2006
DELIVERED AT:	Brisbane
HEARING DATE:	29 May 2006
JUDGES:	de Jersey CJ, Williams and Holmes JJA Separate reasons for judgment of each member of the Court, de Jersey CJ & Williams JA concurring as to the orders made, Holmes JA dissenting
ORDER:	Application for leave to appeal against sentence is refused
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – APPLICATION TO REDUCE SENTENCE – where the applicant pleaded guilty to knowingly possessing child exploitation material and sentenced to 18 months’ imprisonment suspended after three months for an operational period of 18 months – where Court identified the new approach with the prospect of more substantial penalties – whether s 9(6) of the Penalties and Sentences Act 1992 (Qld) applies – whether the sentence was manifestly excessive Classification of Computer Games and Images Act 1995 (Qld), s 26 Criminal Code 1899 (Qld), s 228D Penalties and Sentences Act 1992 (Qld), s 9 R v Cook; ex parte Attorney-General (Qld) [2004] QCA 469; CA No 324 of 2004, 3 December 2004, cited R v Finch; ex parte A-G (Qld) [2006] QCA 060; CA No 319 of 2005, 10 March 2006, cited R v Jones (1999) 108 A Crim R 50, cited R v Reid; ex parte Attorney-General of Queensland [2000] QCA 218; CA No 46 of 2000, 2 June 2000, cited
COUNSEL:	C F C Wilson for the applicant S G Bain for the respondent
SOLICITORS:	Bell Miller Solicitors for the applicant Director of Public Prosecutions (Queensland) for the respondent