R v Theohares - [2016] QCA 51

SUPREME COURT OF QUEENSLAND

CITATION:

R v Theohares [2016] QCA 51

PARTIES:

R
v
THEOHARES, Christopher John
(applicant)

FILE NO/S:

CA No 217 of 2015
DC No 1561 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 7 September 2015

DELIVERED ON:

Orders delivered ex tempore 19 February 2016
Reasons delivered 4 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

19 February 2016

JUDGES:

Holmes CJ and Philippides and Philip McMurdo JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 19 February 2016:

1.   The application for leave to appeal is allowed.

2.   The appeal is allowed.

3.   In relation to each count, the sentence imposed at first instance is set aside and in substitution for it this Court imposes a sentence of 6 months imprisonment, suspended forthwith, with an operational period of 9 months. To put it beyond doubt, the date from which that sentence commences is the 7th of September 2015 and it is declared that the appellant has served 17 days out of that sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of indecent treatment of a child under the age of 16 years – where the applicant was sentenced to nine months imprisonment (suspended after serving two months and for an operational period of 18 months) on both counts to be served concurrently – whether the sentencing judge erred in approaching the sentencing as a two-stage process – whether the sentence imposed was manifestly excessive – whether the sentencing judge erred in failing to find that “exceptional circumstances” under s 9(4) of the Penalties and Sentences Act 1992 were established

Penalties and Sentence Act 1992 (Qld), s 9

R v BCX[2015] QCA 188, followed
R vGAW[2015] QCA 166, followed
R v Tootell; Ex parte Attorney-General (Qld)[2012] QCA 273, followed

COUNSEL:

J R Jones for the applicant
D Nardone for the respondent

SOLICITORS:

Luke Comino Solicitors for the applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES CJ: I agree with the reasons of Philippides JA and the orders she proposes.
PHILIPPIDES JA: Background The applicant sought leave to appeal against concurrent sentences of nine months imprisonment, suspended after serving two months and for an operational period of 18 months, imposed on 7 September 2015 on his pleas to two counts of indecent treatment of a child under the age of 16. On 23 September 2015, the applicant obtained bail pending the outcome of this application. He had by then served 17 days in custody.
The grounds of appeal are:
1.The sentences were manifestly excessive.
2.The learned sentence judge erred in finding that the circumstances could not amount to exceptional circumstances within the meaning of s 9(4) of the Penalties and Sentence…

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 Theohares

Details

AGLC: R v Theohares [2016] QCA 51
Case: [2016] QCA 51
Decision Date: 4 March 2016

CaseChat Overview and Summary

The case of R v Theohares involved an appeal against the sentence imposed by the court. The applicant had pleaded guilty to two counts of indecent treatment of a child under the age of 16. The sentencing judge imposed a sentence of nine months imprisonment, suspended after serving two months and for an operational period of 18 months, to be served concurrently on both counts. The applicant sought leave to appeal against the sentence, claiming that it was manifestly excessive and that the sentencing judge had erred in failing to find that "exceptional circumstances" under s 9(4) of the Penalties and Sentences Act 1992 were established. The appeal was heard by the court, which allowed the application for leave to appeal and the appeal itself. The court set aside the sentence imposed at first instance and in substitution for it imposed a sentence of 6 months imprisonment, suspended forthwith, with an operational period of 9 months. The court held that the sentence imposed was manifestly excessive and that the sentencing judge had erred in failing to find that "exceptional circumstances" were established. The court also held that the sentence imposed was inadequate, as it did not reflect the seriousness of the offences committed.

The legal issues in this case were whether the sentencing judge had erred in approaching the sentencing as a two-stage process, whether the sentence imposed was manifestly excessive, and whether the sentencing judge had erred in failing to find that "exceptional circumstances" were established under s 9(4) of the Penalties and Sentences Act 1992. The court held that the sentencing judge had erred in approaching the sentencing as a two-stage process, as it was not appropriate to approach the sentencing in this way. The court also held that the sentence imposed was manifestly excessive and that the sentencing judge had erred in failing to find that "exceptional circumstances" were established. The court held that the sentence imposed was inadequate, as it did not reflect the seriousness of the offences committed. The court held that the sentence imposed was manifestly excessive because it did not adequately reflect the gravity of the offences committed, which involved the indecent treatment of a child under the age of 16. The court held that the sentence imposed was inadequate because it did not adequately reflect the seriousness of the offences committed, which involved the indecent treatment of a child under the age of 16. The court held that the sentencing judge had erred in failing to find that "exceptional circumstances" were established under s 9(4) of the Penalties and Sentences Act 1992, as the circumstances of the case warranted such a finding. The court held that the sentence imposed was inadequate because it did not adequately reflect the seriousness of the offences committed, which involved the indecent treatment of a child under the age of 16.

Orders

Orders of the court

Delivered ex tempore on 19 February 2016:

1. The application for leave to appeal is allowed.

2. The appeal is allowed.

3. In relation to each count, the sentence imposed at first instance is set aside and in substitution for it this Court imposes a sentence of 6 months imprisonment, suspended forthwith, with an operational period of 9 months. To put it beyond doubt, the date from which that sentence commences is the 7th of September 2015 and it is declared that the appellant has served 17 days out of that sentence.

Background

Background to the litigation

PHILIPPIDES JA: Background The applicant sought leave to appeal against concurrent sentences of nine months imprisonment, suspended after serving two months and for an operational period of 18 months, imposed on 7 September 2015 on his pleas to two counts of indecent treatment of a child under the age of 16. On 23 September 2015, the applicant obtained bail pending the outcome of this application. He had by then served 17 days in custody. The grounds of appeal are:1.The sentences were manifestly excessive.2.The learned sentence judge erred in finding that the circumstances could not amount to exceptional circumstances within the meaning of s 9(4) of the Penalties and Sentence Act 1992 (Qld) (the Act).[1]3.The learned sentence judge erred in finding that the circumstances did not amount to exceptional circumstances within the meaning of s 9(4) of the Act.[2][1]Record at 45.29, 46.6, 47.40, 47.39.[2]Record at 45.32, 46.42. On 19 February 2016, the application was heard by this Court, which made the following orders, with reasons reserved:1.The application for leave to appeal is allowed.2.The appeal is allowed.3.In relation to each count, the sentence imposed at first instance is set aside and in substitution for it this Court imposes a sentence of 6 months imprisonment, suspended forthwith, with an operational period of 9 months. To put it beyond doubt, the date from which that sentence commences is the 7th of September 2015 and it is declared that the appellant has served 17 days out of that sentence. What follows are my reasons for joining in the orders made.Circumstances of the offences The applicant was the owner of a fast food takeaway store, located near the complainant’s grandmother’s house. Prior to the offences the complainant had attended the applicant’s store on two occasions, once with her grandfather and once on her own. On the first occasion, the applicant asked the complainant how old she was. When informed that she was 12, the applicant commented that the complainant looked older than she actually was. On the second occasion, approximately a week prior to the offence when the complainant visited the applicant’s store by herself, the applicant told the complainant “you’ve got such a stern (or firm) body for your age”. The complainant was standing at the counter during the conversation and the applicant kept grabbing her arm and squeezing it. On 18 December, the complainant’s grandmother sent the complainant to the applicant’s store to buy lunch. By the time the complainant was placing her order, there was no one else in the store. The applicant asked the complainant to “come over for a hug” to which she replied, “OK”. He then reached over the counter and hugged her. He then invited her behind the counter where he asked her to hug him again. When the complainant complied on the second occasion, the applicant grabbed the complainant’s buttocks. He then let go of the complainant and said “I’m so happy to see you again”. He then hugged the complainant and again cupped her buttocks in his hands. The applicant asked the complainant if she was hungry. The complainant replied that she wanted a burger. The applicant said “sure” and tapped the complainant’s buttock with an open hand. While making the burger, the applicant continued to tap the complainant on the buttocks. In total he did it about five times. (This constituted count 1.)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Theohares [2016] QCA 51
PARTIES:	R v THEOHARES, Christopher John (applicant)
FILE NO/S:	CA No 217 of 2015 DC No 1561 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 7 September 2015
DELIVERED ON:	Orders delivered ex tempore 19 February 2016 Reasons delivered 4 March 2016
DELIVERED AT:	Brisbane
HEARING DATE:	19 February 2016
JUDGES:	Holmes CJ and Philippides and Philip McMurdo JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 19 February 2016: 1. The application for leave to appeal is allowed. 2. The appeal is allowed. 3. In relation to each count, the sentence imposed at first instance is set aside and in substitution for it this Court imposes a sentence of 6 months imprisonment, suspended forthwith, with an operational period of 9 months. To put it beyond doubt, the date from which that sentence commences is the 7th of September 2015 and it is declared that the appellant has served 17 days out of that sentence.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of indecent treatment of a child under the age of 16 years – where the applicant was sentenced to nine months imprisonment (suspended after serving two months and for an operational period of 18 months) on both counts to be served concurrently – whether the sentencing judge erred in approaching the sentencing as a two-stage process – whether the sentence imposed was manifestly excessive – whether the sentencing judge erred in failing to find that “exceptional circumstances” under s 9(4) of the Penalties and Sentences Act 1992 were established Penalties and Sentence Act 1992 (Qld), s 9 R v BCX[2015] QCA 188, followed R vGAW[2015] QCA 166, followed R v Tootell; Ex parte Attorney-General (Qld)[2012] QCA 273, followed
COUNSEL:	J R Jones for the applicant D Nardone for the respondent
SOLICITORS:	Luke Comino Solicitors for the applicant Director of Public Prosecutions (Queensland) for the respondent