R v SBR

Case [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…

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Details
AGLC
R v SBR [2010] QCA 94
Case
[2010] QCA 94
Decision Date

CaseChat Overview and Summary

The applicant in this case appealed against the sentence imposed by the District Court of Queensland, which found him guilty of three counts of indecent treatment of a child under 12 and one count of rape. The applicant, who was at least five years older than the complainant, his sister, was sentenced under the Juvenile Justice Act 1992 (Qld). The District Court ordered a conviction to be recorded for the rape count, which the applicant challenged on appeal.

The court was required to determine whether the primary judge had given sufficient regard to the relevant factors under section 184 of the Juvenile Justice Act 1992 (Qld) before recording a conviction. The court also needed to assess whether the primary judge erred in exercising their discretion and whether the recording of the conviction was manifestly excessive. The applicant argued that his troubled home environment and the prospects of rehabilitation, as indicated in the pre-sentence report, warranted a different outcome.

The court found that the primary judge did not give sufficient regard to the relevant factors before recording a conviction. The court concluded that the primary judge erred in exercising their discretion, and the recording of the conviction was manifestly excessive. The court allowed the application for leave to appeal against the sentence and set aside the order recording the conviction.

The court ordered that the application for leave to appeal against sentence be allowed and that the appeal against sentence be allowed only to the extent that the order recording the conviction be set aside. The court did not alter the sentence or the convictions for the other counts.

Orders

Orders of the court

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.

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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