R v SBM - [2009] QCA 115

[2009] QCA 115

COURT OF APPEAL

FRASER JA
CHESTERMAN JA
DUTNEY J

CA No 343 of 2008

THE QUEEN

SBM Applicant

BRISBANE

DATE 05/05/2009

JUDGMENT

FRASER JA: Yes, the Court is in a position to give judgment in this application. I'll ask Justice Dutney to give the first reasons.

DUTNEY J: This is an application for leave to appeal against an effective sentence of six years' imprisonment imposed in the District Court. On the 21st of November 2008, the applicant was convicted and sentenced in relation to nine counts of indecent treatment of a child under the age of 12 years; one count of indecent treatment of a child under 14; six counts of indecent treatment of a child under 16; one count of attempted indecent treatment of a child under 16; six counts of possessing child abuse photographs; and two counts of possessing child exploitation material.

The charges were contained in five separate indictments. All of the indecent treatment charges were aggravated by the relationship between the applicant and the victim. The charges of indecent treatment related to three children who were chronologically the applicant's stepdaughter, daughter, and stepson.
In relation to the applicant's stepdaughter the offending behaviour occurred between 1987 and 1991 when the child was aged from nine or 10, through to 13 or 14 years old. The offences against the applicant's daughter were committed between 1993 and 1998 when the child was aged between 10 or 11, until she was aged 15. The offences in relation to the stepson were committed between 2000 and 2001, when the child was aged eight or nine. The offences in relation to the possession of photographs were committed in 2003 and the offences of possessing child exploitation material were committed in 2007.

The learned sentencing Judge imposed sentences of three and four years' imprisonment for the two offences against the first victim, two and five years for the eight offences against the second victim, and three and four years for the two offences against the third victim. All these sentences were to be served concurrently.

In relation to the child abuse photographs the applicant was sentenced to a concurrent term of six months' imprisonment. For the child exploitation material offences the applicant was sentenced to twelve months imprisonment to be served cumulatively on the other sentences. The end result was an effective sentence of six years' imprisonment. No parole eligibility date was fixed.

Under section 185 of the Corrective Services Act, the applicant becomes eligible for parole after he has served three years of the total sentence imposed.

There were a number of distinctive features of the case. The period of indecent dealing was spread over about 14 years and involved three discrete victims in relation to which the offences did not overlap. The offences were serious, including digital penetration of the girls, and fondling the boy's penis and allowing the boy to fondle his penis while he was naked.

The offences were uncovered in 2003. The police…

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 SBM

Details

AGLC: R v SBM [2009] QCA 115
Case: [2009] QCA 115
Decision Date: 5 May 2009

CaseChat Overview and Summary

In the matter of the Queen versus SBM, the Court of Appeal considered an application for leave to appeal against the sentence imposed on the applicant by the District Court. The applicant was convicted of multiple counts of indecent treatment of children, possession of child abuse photographs, and possession of child exploitation material. The Court of Appeal was required to determine whether the sentence imposed was appropriate and whether there was any error in the approach taken by the sentencing judge. The applicant argued that the sentence was excessive and that the sentencing judge had erred in not providing for an early parole eligibility date.

The Court of Appeal found that the sentence imposed by the District Court was within the appropriate range and that there was no error in the approach taken by the sentencing judge. The Court noted that the offences were serious and that the applicant had a long history of offending. The Court also found that the sentencing judge had appropriately taken into account the time already served on remand and had imposed a cumulative sentence for the later offences to reflect the applicant's flight from justice and further offending. The Court held that the absence of a parole eligibility date could be justified by the factors taken into account by the sentencing judge and that the effective sentence was reduced by 18 months to reflect the time already served on remand.

The Court of Appeal dismissed the application for leave to appeal. The Court found that the sentence imposed was appropriate and that there was no error in the approach taken by the sentencing judge. The Court held that the applicant's history of offending and the seriousness of the offences justified the sentence imposed and that the absence of a parole eligibility date could be justified by the factors taken into account by the sentencing judge. The Court also noted that the effective sentence was reduced by 18 months to reflect the time already served on remand.

Orders