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R v Riley

R v Riley

Case [2007] QCA 391 16 November 2007

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Riley [2007] QCA 391

PARTIES:

R
v
RILEY, William Edward
(applicant)

FILE NO/S:

CA No 279 of 2007
DC No 1833 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Orders delivered ex tempore on 2 November 2007
Reasons delivered on 16 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2007

JUDGES:

McMurdo P, Jerrard JA and Dutney J
Judgment of the Court

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where the applicant pleaded guilty to having knowingly possessed child exploitation material – where personal and public deterrence were emphasised at sentence – where rehabilitation was not given sufficient consideration – where the aspect of deterrence could have been sufficiently met by the imposition of a non-custodial sentence – whether the sentencing discretion miscarried

Child Protection (Offending Reporting) Act 2004 (Qld)
Criminal Code 1899 (Qld), s 207A, s 228D
Penalties and Sentences Act 1992 (Qld), s 9(2)(a)

R v Daw[2006] QCA 386; CA No 195 of 2006, 5 October 2006, considered
R v Finch; ex parte Attorney-General (Queensland) [2006] QCA 60; CA No 319 of 2005, 17 February 2006, considered
R v Plunkett [2006] QCA 182; CA No 124 of 2006, 29 May 2006, considered
R v Richardson; ex parte Attorney-General (Queensland) [2007] QCA 294; CA No 158 of 2007, 14 September 2007, followed
R v Wharley [2007] QCA 295; CA No 190 of 2007, 14 September 2007, considered

COUNSEL:

A W Moynihan SC for the appellant
R G Martin SC for the respondent

SOLICITORS:

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

THE COURT: On 19 October 2007 Mr Riley pleaded guilty in the Brisbane District Court to two counts of having knowingly possessed child exploitation material on 2 July 2006. He was sentenced that same day on each count to six months imprisonment suspended after two months with an operational period of twelve months. Mr Riley applied for leave to appeal against that sentence. On 2 November 2007 this Court heard that application, gave leave to appeal, allowed the appeal and varied the sentence by suspending it immediately. The Court stated it would deliver its reasons later. These are the reasons for those orders.

Mr Riley was 28 years old when he offended and 29 when sentenced. He had no criminal history. He was employed at the date of sentence and had been in that employment since January 2002. He occupied a senior role in the employing organisation and had a degree in Information Technology. He had worked in that field since graduating in 1997.

The circumstances of the offences were as follows. On 2 July 2006 police executed a search warrant at Mr Riley’s residence and located a laptop…

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 Riley

Details

AGLC: R v Riley [2007] QCA 391
Case: [2007] QCA 391
Decision Date: 16 November 2007

CaseChat Overview and Summary

The case before the court was an appeal against sentence by the convicted person, Riley, who had pleaded guilty to possessing child exploitation material. The sentencing judge had imposed a sentence of imprisonment, emphasising the need for personal and public deterrence. Riley appealed, arguing that the sentence was excessive and that the sentencing judge had not adequately considered the possibility of a non-custodial sentence, which could have met the objectives of deterrence and rehabilitation. The court was required to determine whether the sentencing discretion had miscarried, particularly in relation to the weight given to the objectives of sentencing.

The central issue before the court was whether the sentencing judge had erred in imposing a custodial sentence without adequately considering the potential for a non-custodial sentence. The court needed to assess whether the objectives of sentencing, particularly deterrence and rehabilitation, were appropriately balanced in the sentence imposed. The court also had to consider whether the sentence was manifestly excessive or inappropriate in the circumstances of the case.

The court held that the sentencing judge had erred in not giving sufficient consideration to the possibility of a non-custodial sentence. The court found that while personal and public deterrence were important objectives, the aspect of deterrence could have been sufficiently met by a non-custodial sentence. The court considered that the sentence imposed was manifestly excessive and inappropriate given the circumstances, and that the sentencing judge had miscarried in the exercise of discretion. Consequently, the court allowed the appeal and ordered a re-sentencing hearing.

In light of the findings, the court ordered that Riley be re-sentenced by a different judge. The court emphasised that the re-sentencing hearing should appropriately balance all relevant objectives of sentencing, including deterrence, rehabilitation, and the circumstances of the offence. The court did not specify the nature of the new sentence but directed that it be proportionate and appropriate to the offence and the offender.

Orders