R v T; ex parte - [2000] QCA 282

SUPREME COURT OF QUEENSLAND

CITATION: R v T; ex parte A-G [2000] QCA 282

PARTIES: R
v
T
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S: CA No 113 of 2000
DC No 876 of 2000

DIVISION: Court of Appeal

PROCEEDING: Sentence Appeal by Attorney-General (Qld)

ORIGINATING COURT:
District Court at Brisbane

DELIVERED ON: 21 July 2000

DELIVERED AT: Brisbane

HEARING DATE: 10 July 2000

JUDGES:
McPherson and Thomas JJA, Mullins J

Joint reasons for judgment of Thomas JA and Mullins J; separate reasons of McPherson JA, concurring as to the orders made

ORDER: Appeal dismissed.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATION TO INCREASE SENTENCE – OTHER OFFENCES – maintaining an unlawful sexual relationship – offender voluntarily going to police – whether sentence of 12 months to be served by intensive correction order manifestly inadequate – actual term of imprisonment usually required – respondent already served three months of intensive correction order

R v Curtis [1999] QCA 197, CA No 42 of 1999, 28 May 1999, considered
R v D [1996] 1 Qd R 363, considered
R v Fattoretto [1998] QCA 131, CA No 31 of 1998, 7 April 1998, considered
R v Grey; ex parte Attorney-General [1995] QCA 158, CA No 477 of 1994, 5 May 1995, considered
R v Hackett [1993] QCA 240, CA No 144 of 1993, 23 June 1993, considered
R v Kuhl [1993] QCA 38, CA No 369 of 1992, 5 February 1993, considered
R v Lipinski (1994) 75 A Crim R 54, considered
R v Phuc Minh Pham [1996] QCA 3, CA No 435 of 1995, 6 February 1996, considered
R v Solway; ex parte Attorney-General [1995] QCA 374, CA No 164 and 187 of 1995, 22 August 1995, considered
R v Wilson [1998] QCA 74, CA No 41 of 1998, 28 April 1998, considered
R v Young [1997] QCA 87, CA No 23 of 1997, 18 April 1997, considered

COUNSEL: M J Byrne QC for the appellant
A J Rafter for the respondent

SOLICITORS:
Director of Public Prosecutions (Queensland) for the appellant

Gilshenan & Luton for the respondent

McPHERSON JA: In R v Phuc Minh Pham (CA No 435 of 1995, 6 February 1996), a court consisting of Fitzgerald P, Davies JA and Mackenzie J said that "other than in exceptional circumstances, those who indecently assault or otherwise deal with children should be sent to jail". Pham was a case of an isolated incident perpetrated by a shopkeeper on a girl less than 12 years of age who came to his shop. He was sentenced to imprisonment for two years, which on appeal was reduced to one year.

Judged by what was said in that case, and by the sentence as reduced in this Court, it would have been very difficult to justify anything short of…

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 T; ex parte

Details

AGLC: R v T; ex parte [2000] QCA 282
Case: [2000] QCA 282
Decision Date: 21 July 2000

CaseChat Overview and Summary

The case of R v T; ex parte involved the Attorney-General, who sought to appeal against the sentence imposed on the respondent, T, by the Supreme Court of Victoria. The respondent had been convicted of maintaining an unlawful sexual relationship, and despite voluntarily presenting to the police, was sentenced to 12 months imprisonment to be served by an intensive correction order. The Attorney-General argued that this sentence was manifestly inadequate and that a term of actual imprisonment was usually required. The respondent had already served three months of the intensive correction order.

The legal issues before the court were whether the sentence of 12 months imprisonment to be served by an intensive correction order was manifestly inadequate and whether the actual term of imprisonment was usually required. The court was required to consider the principles of sentencing and the circumstances of the case in determining whether the sentence was manifestly inadequate.

The court found that the sentence was not manifestly inadequate and dismissed the appeal. The court considered the principles of sentencing and the fact that the respondent had voluntarily presented to the police and pleaded guilty. The court also noted that the respondent had already served three months of the intensive correction order. The court found that the sentence was appropriate in the circumstances and dismissed the appeal. The respondent was ordered to continue to serve the balance of the intensive correction order.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v T; ex parte A-G [2000] QCA 282
PARTIES:	R v T (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 113 of 2000 DC No 876 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by Attorney-General (Qld)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	21 July 2000
DELIVERED AT:	Brisbane
HEARING DATE:	10 July 2000
JUDGES:	McPherson and Thomas JJA, Mullins J Joint reasons for judgment of Thomas JA and Mullins J; separate reasons of McPherson JA, concurring as to the orders made
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATION TO INCREASE SENTENCE – OTHER OFFENCES – maintaining an unlawful sexual relationship – offender voluntarily going to police – whether sentence of 12 months to be served by intensive correction order manifestly inadequate – actual term of imprisonment usually required – respondent already served three months of intensive correction order R v Curtis [1999] QCA 197, CA No 42 of 1999, 28 May 1999, considered R v D [1996] 1 Qd R 363, considered R v Fattoretto [1998] QCA 131, CA No 31 of 1998, 7 April 1998, considered R v Grey; ex parte Attorney-General [1995] QCA 158, CA No 477 of 1994, 5 May 1995, considered R v Hackett [1993] QCA 240, CA No 144 of 1993, 23 June 1993, considered R v Kuhl [1993] QCA 38, CA No 369 of 1992, 5 February 1993, considered R v Lipinski (1994) 75 A Crim R 54, considered R v Phuc Minh Pham [1996] QCA 3, CA No 435 of 1995, 6 February 1996, considered R v Solway; ex parte Attorney-General [1995] QCA 374, CA No 164 and 187 of 1995, 22 August 1995, considered R v Wilson [1998] QCA 74, CA No 41 of 1998, 28 April 1998, considered R v Young [1997] QCA 87, CA No 23 of 1997, 18 April 1997, considered
COUNSEL:	M J Byrne QC for the appellant A J Rafter for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Gilshenan & Luton for the respondent