R v SCI; Ex parte - [2015] QCA 39

SUPREME COURT OF QUEENSLAND

CITATION:

R v SCI; Ex parte Attorney-General (Qld) [2015] QCA 39

PARTIES:

R
v
SCI

(respondent)EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 270 of 2014
DC No 1283 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Attorney-General (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

24 March 2015

DELIVERED AT:

Brisbane

HEARING DATE:

3 March 2015

JUDGES:

Holmes and Gotterson and Philippides JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal against sentence on count 2 is allowed to the extent of substituting an operational period of five years for the existing operational period of three years.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent pleaded guilty to one count of making child exploitation material and one count of distributing child exploitation material – where the respondent was sentenced to two years probation on count 1 and two years imprisonment wholly suspended for an operational period of three years on count 2 – where the respondent committed the offences whilst on bail for a charge of fraud, and partly within the period of a good behaviour bond for a conviction of unlawfully obtaining a financial advantage – where the respondent was the mother of the complainant and the offending involved a serious breach of trust – where the respondent’s offending occurred during a period of emotional and psychological turmoil – where there was a delay of over two years between the complaint being made to police and the respondent being charged, during which the respondent had served a term of imprisonment for fraud – where the respondent had taken significant rehabilitative steps which would be jeopardised by a return to incarceration – whether the respondent should have been required to serve time in actual custody – whether the sentence was manifestly inadequate

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the respondent pleaded guilty to one count of making child exploitation material and one count of distributing child exploitation material – where the respondent was sentenced to two years probation on count 1 and two years imprisonment wholly suspended for an operational period of three years on count 2 – where the respondent had served 12 months of a three and a half year custodial sentence, suspended for an operational period of five years for a conviction of fraud – where this operational period ran concurrently with that for the sentence on count 2 – where the appellant argued that the totality principle did not warrant a reduction in sentence, or in the alternative, that the sentencing judge had misapplied the totality principle by imposing a sentence which did not properly reflect the overall criminality of the offending conduct – whether the totality principle was misapplied

Penalties…

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 SCI; Ex parte

Details

AGLC: R v SCI; Ex parte [2015] QCA 39
Case: [2015] QCA 39
Decision Date: 24 March 2015

CaseChat Overview and Summary

The case before the court involved an appeal by the Crown against the sentence imposed on the respondent, who had pleaded guilty to charges of making and distributing child exploitation material. The respondent, the mother of the complainant, was sentenced to two years probation for making the material and two years imprisonment wholly suspended for an operational period of three years for distributing it. The court was required to consider whether the sentence was manifestly inadequate and whether the totality principle was misapplied.

The primary legal issues before the court were whether the sentence was manifestly inadequate, considering the respondent's history of offending and the seriousness of the breach of trust involved, and whether the sentencing judge had misapplied the totality principle in determining the operational period of the suspended sentence. The Crown argued that the sentence did not adequately reflect the seriousness of the crimes, given the delay in charging and the respondent's history of offending, which included serving a term of imprisonment for fraud while on bail for the current charges.

The court found that the sentence for the distribution offence was manifestly inadequate. The respondent had committed the offences during a period of significant emotional and psychological turmoil and had taken significant rehabilitative steps. However, the court held that the totality principle did not warrant a reduction in sentence. Instead, it allowed the appeal to the extent of substituting an operational period of five years for the existing operational period of three years for the suspended sentence on count 2. This change ensures that the operational periods for the suspended sentences run concurrently.

The court's decision resulted in the appeal against the sentence on count 2 being allowed, with the operational period of the suspended sentence being adjusted to five years. This outcome reflects a consideration of the respondent's rehabilitative efforts and the need to balance the seriousness of the offences with the principles of sentencing, including the totality principle.

Orders

Orders of the court

The appeal against sentence on count 2 is allowed to the extent of substituting an operational period of five years for the existing operational period of three years.

Background

Background to the litigation

Full text does not contain this section.

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 SCI; Ex parte Attorney-General (Qld) [2015] QCA 39
PARTIES:	R v SCI (respondent)EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 270 of 2014 DC No 1283 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by Attorney-General (Qld)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	24 March 2015
DELIVERED AT:	Brisbane
HEARING DATE:	3 March 2015
JUDGES:	Holmes and Gotterson and Philippides JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal against sentence on count 2 is allowed to the extent of substituting an operational period of five years for the existing operational period of three years.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent pleaded guilty to one count of making child exploitation material and one count of distributing child exploitation material – where the respondent was sentenced to two years probation on count 1 and two years imprisonment wholly suspended for an operational period of three years on count 2 – where the respondent committed the offences whilst on bail for a charge of fraud, and partly within the period of a good behaviour bond for a conviction of unlawfully obtaining a financial advantage – where the respondent was the mother of the complainant and the offending involved a serious breach of trust – where the respondent’s offending occurred during a period of emotional and psychological turmoil – where there was a delay of over two years between the complaint being made to police and the respondent being charged, during which the respondent had served a term of imprisonment for fraud – where the respondent had taken significant rehabilitative steps which would be jeopardised by a return to incarceration – whether the respondent should have been required to serve time in actual custody – whether the sentence was manifestly inadequate CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the respondent pleaded guilty to one count of making child exploitation material and one count of distributing child exploitation material – where the respondent was sentenced to two years probation on count 1 and two years imprisonment wholly suspended for an operational period of three years on count 2 – where the respondent had served 12 months of a three and a half year custodial sentence, suspended for an operational period of five years for a conviction of fraud – where this operational period ran concurrently with that for the sentence on count 2 – where the appellant argued that the totality principle did not warrant a reduction in sentence, or in the alternative, that the sentencing judge had misapplied the totality principle by imposing a sentence which did not properly reflect the overall criminality of the offending conduct – whether the totality principle was misapplied Penalties…