R v SBR

[2010] QCA 94

SUPREME COURT OF QUEENSLAND

CITATION:

R v SBR [2010] QCA 94

PARTIES:

R
v
SBR
(applicant/appellant)

FILE NO/S:

CA No 326 of 2009
DC No 3 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Gympie

DELIVERED ON:

30 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

9 April 2010

JUDGES:

McMurdo P and Holmes and Muir JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    The application for leave to appeal against sentence be allowed;

2.    The appeal against sentence be allowed but only to the extent that the order recording the conviction be set aside.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to three counts of indecent treatment of a child under 12 and one count of rape – where applicant sentenced under Juvenile Justice Act 1992 (Qld) – where conviction recorded for rape count – where complainant applicant’s sister – where applicant at least five years older than complainant – where applicant’s home environment troubled – where pre-sentence report indicated good prospects of rehabilitation – whether primary judge gave sufficient regard to factors under s 184 Juvenile Justice Act 1992 (Qld) before recording a conviction – whether primary judge erred in exercise of discretion – whether recording conviction manifestly excessive

Juvenile Justice Act 1992 (Qld), s 150, s 151, s 183, s 184

R v DAU; ex parte A-G (Qld)[2009] QCA 244, cited
R v JO[2008] QCA 260, cited
R v KU & Ors; ex parte A-G (Qld)[2008] QCA 154, cited
R v Marshall[2010] QCA 29, cited
Read v J Lyons & Co Ltd [1947] AC 156; [1946] UK HL 2, cited

COUNSEL:

M Power for the applicant/appellant
M J Copley SC for the respondent

SOLICITORS:

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

1.   McMURDO P:I agree with Muir JA's reasons for granting the application for leave to appeal against sentence and allowing the appeal to the extent of setting aside the recording of a conviction.  I agree with the orders proposed by Muir JA.

1. HOLMES JA:   I agree with the reasons of Muir JA and the orders he proposes.

1. MUIR JA:  Introduction

The applicant was sentenced, after pleading guilty to three counts of indecent treatment of a child under 12 and one count of rape, to two years probation for the indecent treatment offences, and to four months detention and twelve months probation for the offence of rape.  A conviction was recorded only in respect of the rape.  The applicant was between 13 and 15 years of age at the time the indecent treatment offences were committed and was either 15 or about to turn 15 at the time of the rape.  The sole ground of appeal is that the recording of the conviction rendered the…