R v Simard

[2001] QCA 531

SUPREME COURT OF QUEENSLAND

CITATION:

R v S [2001] QCA 531

PARTIES:

R
v
S
(applicant)

FILE NO/S:

CA No 209 of 2001
DC No 719 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

30 November 2001

DELIVERED AT:

Brisbane

HEARING DATE:

26 November 2001

JUDGES:

McPherson and Thomas JJA, Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence and the appeal against the refusal to re-open it dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where after sentence the applicant was made aware that he may be deported as a result of the length of his sentence – whether the learned sentencing Judge should have re-opened the applicant’s sentence – whether the sentence imposed was manifestly excessive

Migration Act 1958 (Cth), s 501

Criminal Code (Qld) s 210, s 229B
Penalties and Sentences Act 1992 (Qld), s 188

R v Booth [2001] 1 Qd R 393, considered
R v Chi Sun Tsui (1985) 1 NSWLR 308, applied
R v P [2001] QCA 130, CA No 4 of 2001, 5 April 2001, considered
R v Shrestha (1991) 173 CLR 48, applied

COUNSEL:

K E Tronc for the appellant
S G Bain for the respondent

SOLICITORS:

Neumann & Turnour for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. McPHERSON JA: This is an appeal, or it may be an application for leave to appeal or to extend the time for doing so, against a decision of Brabazon DCJ refusing an application under s 188 of the Penalties and Sentences Act 1992 to re‑open a sentence his Honour had imposed on the appellant on 9 April 2001. On that date the appellant had pleaded guilty to two counts. The first was an offence of maintaining, contrary to s 229B of the Criminal Code, a sexual relationship with S a child under 16 years of age, accompanied by the circumstances of aggravation that the child was in fact under 12 years and that he was in the care of the appellant. The second was an offence under s 210 of the Code of having indecently dealt with a child under 12, with the aggravating circumstance that he too was under the care of the appellant. The appellant was sentenced to imprisonment for three years on count 1 and to six months on count 2 to be served concurrently, but the term of three years was ordered to be suspended after 12 months for an operative period of five years.

1. On 19 July 2001 the appellant came back before Brabazon DCJ with the application under s 188 to re-open that…