R v Salsone; ex parte A-G (Qld) - [2008] QCA 220

SUPREME COURT OF QUEENSLAND

CITATION:

R v Salsone; ex parte A-G (Qld) [2008] QCA 220

PARTIES:

R
v
SALSONE, Kieran Vincent
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 102 of 2008
DC No 2955 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by the A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

1 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

8 July 2008

JUDGES:

McMurdo P, Fraser JA and Mackenzie AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeal allowed1.

Sentence imposed at first instance set aside2.

On count 1, substitute a sentence of 15 months imprisonment suspended forthwith with an operational period of two years3.

On count 2, substitute a sentence of two years probation on the terms and conditions set out in s 92(1) Penalties and Sentences Act 1992 (Qld) together with an additional condition that he receive psychological and/or psychiatric treatment and counselling as directed by an authorised corrective services officer4.

Convictions are recorded on each count5.

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 – respondent convicted upon guilty plea of one count of distributing, and one count of possessing, child exploitation material – respondent used peer-to-peer software which allowed others to access child exploitation material on his computer – respondent was 21 years old at the time of the offence, co-operated with the authorities and pleaded guilty at an early stage – respondent has promising prospects of rehabilitation – judge imposed concurrent sentences of two and three year terms of probation and ordered the respondent to perform 200 hours of community service – by hearing of appeal, respondent had performed all 200 hours of community service satisfactorily – whether sentence imposed manifestly inadequate – what sentence should be imposed on Attorney-General's appeal

Criminal Code 1899 (Qld), s 228C, s 228D
Penalties and Sentences Act 1992 (Qld), s 9(2), s 12(2)

R v Plunkett[2006] QCA 182, considered
R v Richardson; ex parte A-G (Qld) (2007) 175 A Crim R 244; [2007] QCA 294, cited
R v Wharley (2007) 175 A Crim R 253; [2007] QCA 295, considered
R v Riley [2007] QCA 391, cited
R v Daw [2006] QCA 386, considered
R v Hood [2005] 2 Qd R 54; [2005] QCA 159, cited

COUNSEL:

D L Meredith for the appellant
C W Heaton for the respondent

SOLICITORS:

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

McMURDO P: Kieran Vincent Salsone pleaded guilty in the District Court at Brisbane on 27 March 2008 to one count of distributing child exploitation material (count 1) and one count of possessing child exploitation material (count 2). The offences occurred in November and December 2006. On the first…

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: [2008] QCA 220
Decision Date: 1 August 2008

CaseChat Overview and Summary

The respondents were convicted upon their guilty pleas of one count of distributing and one count of possessing child exploitation material. They appealed against their sentence, arguing it was manifestly inadequate. The Attorney-General intervened, seeking a higher penalty. The respondents had used peer-to-peer software to allow others to access child exploitation material on their computer. They were 21 years old at the time of the offence, cooperated with the authorities, and pleaded guilty at an early stage. They had promising prospects of rehabilitation. The judge imposed concurrent sentences of two and three years of probation and ordered them to perform 200 hours of community service. By the time of the appeal hearing, they had satisfactorily completed all 200 hours of community service.

The legal issues before the court were whether the sentence imposed was manifestly inadequate and, if so, what sentence should be imposed on the Attorney-General's appeal. The court noted that the primary judge had considered the respondents' guilty pleas, cooperation with authorities, and prospects of rehabilitation. The court considered the respondents' age, their cooperation, and their rehabilitation prospects as mitigating factors. However, the court also considered the seriousness of the offences, which involved distributing and possessing child exploitation material. The court held that the sentence imposed was manifestly inadequate and set it aside. The court substituted a sentence of 15 months imprisonment suspended forthwith with an operational period of two years on the first count and two years probation with additional conditions on the second count.

The appeal was allowed, and the sentence imposed at first instance was set aside. On the first count, the court substituted a sentence of 15 months imprisonment suspended forthwith with an operational period of two years. On the second count, the court substituted a sentence of two years probation with conditions, including psychological and/or psychiatric treatment and counselling as directed by an authorised corrective services officer. The convictions were recorded on each count. The court considered the respondents' age, cooperation, and prospects of rehabilitation as mitigating factors, but also considered the seriousness of the offences in reaching its decision.

Orders

Orders of the court

Appeal allowed1.

Sentence imposed at first instance set aside2.

On count 1, substitute a sentence of 15 months imprisonment suspended forthwith with an operational period of two years3.

On count 2, substitute a sentence of two years probation on the terms and conditions set out in s 92(1) Penalties and Sentences Act 1992 (Qld) together with an additional condition that he receive psychological and/or psychiatric treatment and counselling as directed by an authorised corrective services officer4.

Convictions are recorded on each count5.

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 Salsone; ex parte A-G (Qld) [2008] QCA 220
PARTIES:	R v SALSONE, Kieran Vincent (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 102 of 2008 DC No 2955 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by the A-G (Qld)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	1 August 2008
DELIVERED AT:	Brisbane
HEARING DATE:	8 July 2008
JUDGES:	McMurdo P, Fraser JA and Mackenzie AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Appeal allowed1. Sentence imposed at first instance set aside2. On count 1, substitute a sentence of 15 months imprisonment suspended forthwith with an operational period of two years3. On count 2, substitute a sentence of two years probation on the terms and conditions set out in s 92(1) Penalties and Sentences Act 1992 (Qld) together with an additional condition that he receive psychological and/or psychiatric treatment and counselling as directed by an authorised corrective services officer4. Convictions are recorded on each count5.
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 – respondent convicted upon guilty plea of one count of distributing, and one count of possessing, child exploitation material – respondent used peer-to-peer software which allowed others to access child exploitation material on his computer – respondent was 21 years old at the time of the offence, co-operated with the authorities and pleaded guilty at an early stage – respondent has promising prospects of rehabilitation – judge imposed concurrent sentences of two and three year terms of probation and ordered the respondent to perform 200 hours of community service – by hearing of appeal, respondent had performed all 200 hours of community service satisfactorily – whether sentence imposed manifestly inadequate – what sentence should be imposed on Attorney-General's appeal Criminal Code 1899 (Qld), s 228C, s 228D Penalties and Sentences Act 1992 (Qld), s 9(2), s 12(2) R v Plunkett[2006] QCA 182, considered R v Richardson; ex parte A-G (Qld) (2007) 175 A Crim R 244; [2007] QCA 294, cited R v Wharley (2007) 175 A Crim R 253; [2007] QCA 295, considered R v Riley [2007] QCA 391, cited R v Daw [2006] QCA 386, considered R v Hood [2005] 2 Qd R 54; [2005] QCA 159, cited
COUNSEL:	D L Meredith for the appellant C W Heaton for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent