Holmes JA, Mullins and Philippides JJ 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 dismissed
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – appeal by convicted persons – when refused – particular offences – other offences – where applicant convicted of one count of using a carriage service to access child pornography material and one count of possession of child exploitation material – where applicant sentenced to 15 months’ imprisonment to be released after serving six months upon entering into a recognizance subject to conditions in relation to the accessing offence – where applicant sentenced to 12 months’ imprisonment to be suspended after serving a period of four months’ imprisonment with an operational period of two years in relation to the possession offence – where applicant accessed a modest number of images but on more than one occasion – where largest proportion of images were category 1 images but where some were of extremely young children – where applicant made an early plea of guilty, had a good prior work history and no prior criminal history – where minimal evidence before sentencing judge of applicant’s prospects of rehabilitation – whether the sentences requiring six months in actual custody were outside the range that could be imposed in the sound exercise of the sentencing discretion – whether the sentences were manifestly excessive
C L Morgan for the applicant G R Rice for the respondent
SOLICITORS:
Legal Aid Queensland for the applicant Commonwealth Director of Public Prosecutions for the respondent
: HOLMES JAI agree with the reasons of Mullins J and with the order her Honour proposes.
MULLINS J: The applicant pleaded guilty on 11 June 2009 to two counts on an ex officio indictment. Count 1 was the offence of using a carriage…
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.
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Details
AGLC
R v Sykes [2009] QCA 267
Case
[2009] QCA 267
Decision Date
CaseChat Overview and Summary
The case of R v Sykes involved the appellant, who was convicted of using a carriage service to access child pornography and of possessing child exploitation material. The court was asked to consider whether the sentences imposed on the appellant were excessive. The appellant was sentenced to 15 months' imprisonment for the accessing offence, with the sentence to be released after serving six months upon entering into a recognizance subject to conditions. For the possession offence, the appellant was sentenced to 12 months' imprisonment, to be suspended after serving a period of four months' imprisonment, with an operational period of two years.
The primary legal issue the court had to address was whether the sentences imposed by the trial judge, requiring six months in actual custody, were outside the range that could be imposed in the sound exercise of the sentencing discretion. The appellant argued that the sentences were manifestly excessive, particularly given that they had accessed a modest number of images on more than one occasion, and that the largest proportion of the images were category 1 images, though some were of extremely young children. The appellant had made an early plea of guilty, had a good prior work history, and no prior criminal history. The court also noted that there was minimal evidence before the sentencing judge of the appellant's prospects of rehabilitation.
The court examined the totality of the circumstances, including the nature and circumstances of the offences, the appellant's criminal history, and the need for general and specific deterrence. The court concluded that the sentences were not manifestly excessive, nor were they outside the range that could be imposed in the sound exercise of the sentencing discretion. The court found that the sentences reflected the seriousness of the offences and appropriately balanced the need for punishment with the appellant's personal circumstances. Consequently, the application for leave to appeal against the sentence was dismissed.
Orders
Orders of the court
Application for leave to appeal against sentence dismissed