R v TL - [2004] QCA 430

SUPREME COURT OF QUEENSLAND

CITATION:

R v TL [2004] QCA 430

PARTIES:

R
v
TL
(applicant/appellant)

FILE NO/S:

CA No 213 of 2004
DC No 464 of 2002
DC No 465 of 2002
DC No 466 of 2002
DC No 245 of 2003
DC No 327 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

12 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

22 September 2004

JUDGES:

Jerrard JA, White and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Grant the application for leave to appeal against sentence

2.   Allow the appeal

3.   Vary the order below by-

     (a) Setting aside the sentences for the following offences-

           Indictment 464/02 – counts 5 and 6
           Indictment 465/02 – count 1
           Indictment 466/02 – counts 1,3,4,6 and 7,

     and recording that in respect of each of those offences the appellant is convicted but not punished

     (b) Setting aside the sentence of four years imprisonment imposed on indictment 245/03 in respect of indecent treatment of a child under 16 years, and ordering instead a sentence of two years imprisonment

     (c) Deleting the provision that the remaining sentences be served cumulatively upon the terms of imprisonment imposed on 13 October 2003

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – FACTORS TO BE TAKEN INTO ACCOUNT – FACTUAL BASIS FOR SENTENCE – SENTENCE TO BE OF AND RELATED TO OFFENCE – GENERALLY – where applicant pleaded guilty to offences of a sexual nature detailed in five separate indictments in respect of five complainants – where s 11 Criminal Code 1899 (Qld) precluded punishment in respect of a number of the offences pleaded to and sentences with respect to those offences set aside – whether convictions on those offences should be set aside – whether those convictions could be used to determine the appropriate penalty for the remaining punishable convictions

Criminal Code 1899 (Qld), s 11
Penalties and Sentences Act 1992 (Qld), s 9

R v D [1996] 1 Qd R 363, considered
Weininger v The Queen (2003) 212 CLR 629, considered

COUNSEL:

A J Rafter SC for the applicant/appellant
R G Martin for the respondent

SOLICITORS:

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

JERRARD JA: In this matter I have read the reasons for judgment of Jones J, and the orders proposed by his Honour, and respectfully agree with those reasons and orders, and with the additional remarks of White J.

WHITE J: I have read the reasons for judgment of Jones J. I agree with his Honour’s approach to the use which may be made of the convictions in respect of which the sentences are to be set aside by virtue of s 11 of the Criminal Code. To ignore those convictions would, as his Honour points out, involve disregarding the offender’s character which the court is obliged to…

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 TL

Details

AGLC: R v TL [2004] QCA 430
Case: [2004] QCA 430
Decision Date: 12 November 2004

CaseChat Overview and Summary

The applicant in this case pleaded guilty to a series of sexual offences involving five different complainants. These offences were detailed in five separate indictments. However, section 11 of the Criminal Code 1899 (Qld) precluded punishment for a number of the offences to which the applicant had pleaded guilty. Consequently, sentences for those specific offences were set aside, and it was ordered that the applicant was convicted but not punished. The legal issues before the court were whether the convictions for these offences should be set aside and whether those convictions could be used to determine the appropriate penalty for the remaining punishable convictions.

The court addressed the legal issues by examining the nature of the offences and the specific statutory provisions that precluded punishment for certain counts. It considered the principle that a sentence must be of and related to the offence for which it is imposed. The court found that section 11 of the Criminal Code did indeed preclude punishment for some of the offences, leading to the sentences being set aside. However, the court also held that the convictions could be used to inform the appropriate penalty for the remaining offences. In light of this, the court varied the sentence for one of the remaining offences, reducing the term of imprisonment from four years to two years.

The court granted the application for leave to appeal against the sentence and allowed the appeal in part. It set aside the sentences for several offences, recording that the applicant was convicted but not punished for those offences. It also set aside the original sentence for the indecent treatment of a child under 16 years and ordered a reduced sentence of two years imprisonment. Finally, the court deleted the provision that the remaining sentences be served cumulatively, ordering instead that they be served on the terms specified.

Orders

Orders of the court

1. Grant the application for leave to appeal against sentence

2. Allow the appeal

3. Vary the order below by-

(a) Setting aside the sentences for the following offences-

Indictment 464/02 – counts 5 and 6

Indictment 465/02 – count 1

Indictment 466/02 – counts 1,3,4,6 and 7,

and recording that in respect of each of those offences the appellant is convicted but not punished

(b) Setting aside the sentence of four years imprisonment imposed on indictment 245/03 in respect of indecent treatment of a child under 16 years, and ordering instead a sentence of two years imprisonment

(c) Deleting the provision that the remaining sentences be served cumulatively upon the terms of imprisonment imposed on 13 October 2003

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.

CITATION:	R v TL [2004] QCA 430
PARTIES:	R v TL (applicant/appellant)
FILE NO/S:	CA No 213 of 2004 DC No 464 of 2002 DC No 465 of 2002 DC No 466 of 2002 DC No 245 of 2003 DC No 327 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	12 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	22 September 2004
JUDGES:	Jerrard JA, White and Jones JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant the application for leave to appeal against sentence 2. Allow the appeal 3. Vary the order below by- (a) Setting aside the sentences for the following offences- Indictment 464/02 – counts 5 and 6 Indictment 465/02 – count 1 Indictment 466/02 – counts 1,3,4,6 and 7, and recording that in respect of each of those offences the appellant is convicted but not punished (b) Setting aside the sentence of four years imprisonment imposed on indictment 245/03 in respect of indecent treatment of a child under 16 years, and ordering instead a sentence of two years imprisonment (c) Deleting the provision that the remaining sentences be served cumulatively upon the terms of imprisonment imposed on 13 October 2003
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – FACTORS TO BE TAKEN INTO ACCOUNT – FACTUAL BASIS FOR SENTENCE – SENTENCE TO BE OF AND RELATED TO OFFENCE – GENERALLY – where applicant pleaded guilty to offences of a sexual nature detailed in five separate indictments in respect of five complainants – where s 11 Criminal Code 1899 (Qld) precluded punishment in respect of a number of the offences pleaded to and sentences with respect to those offences set aside – whether convictions on those offences should be set aside – whether those convictions could be used to determine the appropriate penalty for the remaining punishable convictions Criminal Code 1899 (Qld), s 11 Penalties and Sentences Act 1992 (Qld), s 9 R v D [1996] 1 Qd R 363, considered Weininger v The Queen (2003) 212 CLR 629, considered
COUNSEL:	A J Rafter SC for the applicant/appellant R G Martin for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent