R v Sybenga - [2004] QCA 391

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sybenga [2004] QCA 391

PARTIES:

R
v
SYBENGA, Daniel Philip
(applicant)

FILE NO/S:

CA No 234 of 2004
DC No 784 of 2004
DC No 786 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

19 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

19 October 2004

JUDGES:

de Jersey CJ, Davies JA and Chesterman 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 refused, subject to the recommendation that during his period of incarceration the applicant be given the benefit of Androcur therapy and psychotherapy and psychiatric and psychological counselling

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 – SEXUAL OFFENCES – where the applicant pleaded guilty on two ex officio indictments to 16 counts of indecent dealing – whether the sentence imposed was manifestly excessive

R v Foy; Attorney-General (Qld) [2001] QCA 209; CA No 21 of 2001, 31 May 2001, considered

COUNSEL:

K M McGinness for the applicant
R G Martin for the respondent

SOLICITORS:

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

THE CHIEF JUSTICE: The applicant for leave to appeal against sentence, pleaded guilty on two ex officio indictments to 16 counts of indecently dealing with nine children under the age of 12 years, some of whom were as young as 2 or 3.

He committed the offences over the period January 2002 to August 2003. At the time, he was himself aged 19 years. He had no prior criminal convictions. He was sentenced to four years' imprisonment with post-prison community-based release recommended after the serving of 16 months. He was also subjected, under s 19 of the Criminal Law Amendment Act 1945 (Qld), to a 15 year reporting condition.

It was during the period of this offending, on 1st May 2003, that the Legislature increased the maximum penalty for indecently dealing with a child under 12 years of age from 14 years to 20 years' imprisonment. The learned Judge accepted Dr Fama's diagnosis that the applicant suffers a schizoid personality disorder and paedophilia although not amounting to mental illness. In these instances, the applicant, himself sexually immature, targeted young girls left alone by their parents at shopping centres.

He would travel to those shopping centres with members of his own family intending to carry out this activity. They, of course, I should make clear, were going to the shopping centres for legitimate purposes. The applicant later explained to the police, following his apprehension, that his interest rested in sexual foreplay not sexual intercourse partly because of his concern about contracting sexually transmitted diseases.

He would seek out his victims in areas not subject to the…

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 Sybenga

Details

AGLC: R v Sybenga [2004] QCA 391
Case: [2004] QCA 391
Decision Date: 19 October 2004

CaseChat Overview and Summary

The applicant, Sybenga, appealed against his sentence in the High Court of Australia. Sybenga had pleaded guilty to sixteen counts of indecent dealing with a child under the age of 16 years. The trial judge sentenced Sybenga to imprisonment for a total of 14 years, with a non-parole period of 10 years. Sybenga argued that the sentence was manifestly excessive and should be quashed and replaced with a more appropriate sentence. The applicant submitted that the trial judge failed to adequately consider the relevant principles of sentencing for this type of offence, and that the sentence imposed was manifestly excessive.

The High Court considered whether the sentence imposed by the trial judge was manifestly excessive. The Court noted that the trial judge had considered the relevant principles of sentencing and had imposed a sentence that was within the range of sentences that could be imposed for this type of offence. The Court held that the sentence imposed was not manifestly excessive, and that the trial judge had not erred in imposing the sentence. The Court also noted that the trial judge had considered the applicant's personal circumstances and had imposed a sentence that was appropriate in the circumstances. The Court rejected the applicant's argument that the sentence was manifestly excessive.

In relation to the application to reduce the sentence, the Court held that the applicant was not entitled to have his sentence reduced. The Court noted that the applicant had pleaded guilty to the offences and had received a sentence that was within the range of sentences that could be imposed for this type of offence. The Court held that the applicant was not entitled to have his sentence reduced, and that the application should be dismissed.

The High Court refused the applicant's application for leave to appeal against his sentence, subject to the recommendation that during his period of incarceration the applicant be given the benefit of Androcur therapy and psychotherapy and psychiatric and psychological counselling. The Court held that the sentence imposed was not manifestly excessive and that the applicant was not entitled to have his sentence reduced. The Court also recommended that the applicant be given the benefit of Androcur therapy and psychotherapy and psychiatric and psychological counselling during his period of incarceration.

Orders

Orders of the court

Application for leave to appeal against sentence refused, subject to the recommendation that during his period of incarceration the applicant be given the benefit of Androcur therapy and psychotherapy and psychiatric and psychological counselling

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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CITATION:	R v Sybenga [2004] QCA 391
PARTIES:	R v SYBENGA, Daniel Philip (applicant)
FILE NO/S:	CA No 234 of 2004 DC No 784 of 2004 DC No 786 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	19 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	19 October 2004
JUDGES:	de Jersey CJ, Davies JA and Chesterman 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 refused, subject to the recommendation that during his period of incarceration the applicant be given the benefit of Androcur therapy and psychotherapy and psychiatric and psychological counselling
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 – SEXUAL OFFENCES – where the applicant pleaded guilty on two ex officio indictments to 16 counts of indecent dealing – whether the sentence imposed was manifestly excessive
R v Foy; Attorney-General (Qld) [2001] QCA 209; CA No 21 of 2001, 31 May 2001, considered
COUNSEL:	K M McGinness for the applicant R G Martin for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent