R v Ritchie; ex parte - [2009] QCA 270

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ritchie; ex parte A-G (Qld) [2009] QCA 270

PARTIES:

R
v
RITCHIE, Brett Richard
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 141 of 2009
DC No 223 of 2001
DC No 224 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

11 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

20 August 2009

JUDGES:

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

ORDERS:

1.   The appeal against the sentence imposed for the offence of unlawful carnal knowledge is allowed. The sentence is set aside and instead the respondent is sentenced to 12 months imprisonment suspended after serving two months with an operational period of three years.

2.   The appeal against the sentence imposed on the two counts of indecent treatment of a child under 16 is dismissed.

3.   A warrant is issued for the arrest of the respondent but it is to lie in the registry for two weeks.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the respondent pleaded guilty to one count of unlawful carnal knowledge of a child under 16 years and two counts of indecent treatment of a child under 16 years – the respondent had extensive criminal history but no prior convictions for sexual offences – the offences seemed to be predatory and equate to grooming of the complainants – whether the sentence was manifestly inadequate

CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – FACTUAL BASIS FOR SENTENCING – GENERALLY – the offences in question occurred in 2000 – the respondent was not at fault for the delay in finalising the charges – since the offences occurred the respondent has made significant efforts at rehabilitation and has given up alcohol and drugs – whether the sentencing judge gave too much weight to the respondent's rehabilitation – whether the efforts at rehabilitation were sufficient to avoid actual custody – whether the sentencing judge gave insufficient weight to the principle of general deterrence

R v Clifford; ex parte A-G (Qld) [2006] QCA 492, considered
R v Pham [1996] QCA 3, cited

COUNSEL:

T Moynihan SC, with L Brisick, for the appellant
B W Farr SC, with K Hillard, for the respondent

SOLICITORS:

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

McMURDO P: The respondent, Brett Richard Ritchie, pleaded guilty on 20 April 2009 to two counts of indecent treatment of a child under 16 years between June and September 2000 and one count of unlawful carnal knowledge of a child under 16 years on 10 September 2000. Unusually in light of the seriousness of the offences, his bail was enlarged without objection by the prosecution to enable him to return to Victoria where he had resided…

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 Ritchie; ex parte

Details

AGLC: R v Ritchie; ex parte [2009] QCA 270
Case: [2009] QCA 270
Decision Date: 11 September 2009

CaseChat Overview and Summary

The appeal in this matter was brought by the respondent, Ritchie, who sought to challenge the sentence imposed on him by the lower court. Ritchie had pleaded guilty to one count of unlawful carnal knowledge of a child under 16 years and two counts of indecent treatment of a child under 16 years. The court was required to decide whether the sentence was manifestly inadequate or excessive in the circumstances. Ritchie contended that the sentence was inadequate given his efforts at rehabilitation since the offences were committed in 2000. The court was also required to consider whether the sentencing judge had given too much weight to Ritchie's rehabilitation efforts and insufficient weight to the principle of general deterrence.

The court examined the nature of the offences, which involved predatory behaviour and grooming of the complainants, and considered Ritchie's extensive criminal history, which did not include prior convictions for sexual offences. The court found that the sentencing judge had appropriately taken into account Ritchie's efforts at rehabilitation but had erred in giving insufficient weight to the principle of general deterrence. The court noted that while Ritchie had made significant efforts at rehabilitation, this did not necessarily mean that he should avoid actual custody. The court also found that the sentence was inadequate in light of the nature of the offences and the need to deter others from engaging in similar conduct.

Accordingly, the appeal against the sentence for the offence of unlawful carnal knowledge was allowed and the sentence was set aside. In its place, the respondent was sentenced to 12 months imprisonment suspended after serving two months with an operational period of three years. The appeal against the sentence imposed for the two counts of indecent treatment was dismissed. A warrant for the respondent's arrest was issued but it was to lie in the registry for two weeks.

Orders

Orders of the court

1. The appeal against the sentence imposed for the offence of unlawful carnal knowledge is allowed. The sentence is set aside and instead the respondent is sentenced to 12 months imprisonment suspended after serving two months with an operational period of three years.

2. The appeal against the sentence imposed on the two counts of indecent treatment of a child under 16 is dismissed.

3. A warrant is issued for the arrest of the respondent but it is to lie in the registry for two weeks.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Ritchie; ex parte A-G (Qld) [2009] QCA 270
PARTIES:	R v RITCHIE, Brett Richard (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 141 of 2009 DC No 223 of 2001 DC No 224 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	11 September 2009
DELIVERED AT:	Brisbane
HEARING DATE:	20 August 2009
JUDGES:	McMurdo P, Keane JA and P Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal against the sentence imposed for the offence of unlawful carnal knowledge is allowed. The sentence is set aside and instead the respondent is sentenced to 12 months imprisonment suspended after serving two months with an operational period of three years. 2. The appeal against the sentence imposed on the two counts of indecent treatment of a child under 16 is dismissed. 3. A warrant is issued for the arrest of the respondent but it is to lie in the registry for two weeks.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the respondent pleaded guilty to one count of unlawful carnal knowledge of a child under 16 years and two counts of indecent treatment of a child under 16 years – the respondent had extensive criminal history but no prior convictions for sexual offences – the offences seemed to be predatory and equate to grooming of the complainants – whether the sentence was manifestly inadequate CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – FACTUAL BASIS FOR SENTENCING – GENERALLY – the offences in question occurred in 2000 – the respondent was not at fault for the delay in finalising the charges – since the offences occurred the respondent has made significant efforts at rehabilitation and has given up alcohol and drugs – whether the sentencing judge gave too much weight to the respondent's rehabilitation – whether the efforts at rehabilitation were sufficient to avoid actual custody – whether the sentencing judge gave insufficient weight to the principle of general deterrence R v Clifford; ex parte A-G (Qld) [2006] QCA 492, considered R v Pham [1996] QCA 3, cited
COUNSEL:	T Moynihan SC, with L Brisick, for the appellant B W Farr SC, with K Hillard, for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent