R v. Richardson ; ex parte A-G (Qld) - [2007] QCA 294

SUPREME COURT OF QUEENSLAND

CITATION:

R v Richardson; ex parte A-G (Qld) [2007] QCA 294

PARTIES:

R
v
RICHARDSON, Michael Raymond
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

Appeal No 158 of 2007
DC No 272 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

14 September 2007

DELIVERED AT:

Brisbane

HEARING DATE:

29 August 2007

JUDGES:

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

ORDER:

Appeal dismissed

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 – OTHER OFFENCES – where respondent sentenced to 12 months imprisonment wholly suspended for three years and conviction recorded for three counts of knowingly possessing child exploitation material – whether sentence reflects adequately the gravity of the offence both generally and particularly – whether general deterrence sufficiently taken into account – whether too much weight given to mitigating factors

Child Protection (Offender Reporting) Act 2004 (Qld)

Criminal Code 1899 (Qld), s 228D

Penalties and Sentences Act 1992 (Qld), s 9(2)(a)

AB v The Queen (1999) 198 CLR 111, cited

R v Daw [2006] QCA 386; CA No 195 of 2006, 5 October 2006, cited

Everett v The Queen (1994) 181 CLR 295, cited

GAS v The Queen (2004) 217 CLR 198, cited

R v Horne [2005] QCA 218; CA No 104 of 2005, 22 June 2005, cited

R v Perez-Vargas (1986) 8 NSWLR 559, cited

R v PW [2005] QCA 177; CA No 102 of 2005, 30 May 2005, cited
R v Quick; ex parte A-G (Qld)[2006] QCA 477; CA No 277 of 2006, 17 November 2006, distinguished
R v Hogg, unreported, Kingham DCJ, 22 September 2006, distinguished
R v Thompson, unreported, Samios DCJ, 24 January 2006, distinguished
R v Wilton (1981) 28 SASR 362, cited

COUNSEL:

M R Byrne for the appellant
A W Moynihan SC for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Legal Aid Queensland for the respondent

McMURDO P: The Queensland Attorney-General's appeal against sentence should be dismissed for the reasons given by Keane JA.

For these three offences against s 228D Criminal Code 1899 (Qld) Mr Richardson was sentenced to 12 months imprisonment wholly suspended with an operational period of three years. He was not required to serve any period of actual imprisonment. The main ground of appeal was that the sentence failed to take sufficiently into account the aspect of general deterrence. The principle of deterrence, both personal and general, is of considerable importance when sentencing for offences of this type. In criminalising and making punishable by up to five years imprisonment conduct like that engaged in by Mr Richardson, the legislature plainly intended to deter…

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: [2007] QCA 294
Decision Date: 14 September 2007

CaseChat Overview and Summary

In the case of R v. Richardson; ex parte A-G (Qld), the Attorney-General of Queensland sought leave to appeal against the sentence imposed on the respondent, who had been found guilty of three counts of knowingly possessing child exploitation material. The respondent was sentenced to 12 months imprisonment, wholly suspended for three years, and a conviction was recorded. The Attorney-General argued that the sentence did not adequately reflect the gravity of the offence, both generally and specifically, and that general deterrence was not sufficiently taken into account. Furthermore, it was contended that too much weight had been given to mitigating factors.

The central legal issue before the court was whether the sentence imposed on the respondent was manifestly inadequate, considering the nature and gravity of the crimes committed. The Attorney-General contended that the sentence did not appropriately reflect the seriousness of the offence and failed to adequately serve the purpose of general deterrence. The court was required to assess whether the sentence was unjust or excessive, and if the appeal should be dismissed.

The court examined the circumstances of the case and the sentencing principles that should be applied. It considered the nature of the offence, the impact of the respondent's actions, and the role of general deterrence. The court found that the sentence imposed by the primary judge was not manifestly inadequate, and that it appropriately balanced the relevant aggravating and mitigating factors. The court concluded that the sentence reflected the gravity of the offence, and that the appeal should be dismissed. The appeal was therefore dismissed, and no orders were made.

Orders

Orders of the court

Appeal dismissed

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 Richardson; ex parte A-G (Qld) [2007] QCA 294
PARTIES:	R v RICHARDSON, Michael Raymond (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	Appeal No 158 of 2007 DC No 272 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	14 September 2007
DELIVERED AT:	Brisbane
HEARING DATE:	29 August 2007
JUDGES:	McMurdo P, Keane JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
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 – OTHER OFFENCES – where respondent sentenced to 12 months imprisonment wholly suspended for three years and conviction recorded for three counts of knowingly possessing child exploitation material – whether sentence reflects adequately the gravity of the offence both generally and particularly – whether general deterrence sufficiently taken into account – whether too much weight given to mitigating factors Child Protection (Offender Reporting) Act 2004 (Qld) Criminal Code 1899 (Qld), s 228D Penalties and Sentences Act 1992 (Qld), s 9(2)(a) AB v The Queen (1999) 198 CLR 111, cited R v Daw [2006] QCA 386; CA No 195 of 2006, 5 October 2006, cited Everett v The Queen (1994) 181 CLR 295, cited GAS v The Queen (2004) 217 CLR 198, cited R v Horne [2005] QCA 218; CA No 104 of 2005, 22 June 2005, cited R v Perez-Vargas (1986) 8 NSWLR 559, cited R v PW [2005] QCA 177; CA No 102 of 2005, 30 May 2005, cited R v Quick; ex parte A-G (Qld)[2006] QCA 477; CA No 277 of 2006, 17 November 2006, distinguished R v Hogg, unreported, Kingham DCJ, 22 September 2006, distinguished R v Thompson, unreported, Samios DCJ, 24 January 2006, distinguished R v Wilton (1981) 28 SASR 362, cited
COUNSEL:	M R Byrne for the appellant A W Moynihan SC for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent