R v Tyrrell - [2022] QCA 157

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tyrrell [2022] QCA 157

PARTIES:

R
v
TYRRELL, Shane Noel
(applicant)

FILE NO/S:

CA No 124 of 2022
DC No 601 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh – Date of Sentence: 22 June 2022 (Chowdhury DCJ)

DELIVERED ON:

26 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2022

JUDGES:

Mullins P and McMurdo and Bond JJA

ORDER:

The application for leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to one count of distributing child exploitation material and one count of possessing child exploitation material – where the applicant was sentenced to nine months’ imprisonment wholly suspended for the distribution count and three months’ imprisonment wholly suspended for the possession count – where the operational period on each count was 12 months – whether the sentencing judge erred by treating the offence in the distribution count as more serious than the offence in the possession count – whether the sentencing discretion miscarried

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to one count of distributing child exploitation material and one count of possessing child exploitation material – where the applicant was sentenced to nine months’ imprisonment wholly suspended for the distribution count and three months’ imprisonment wholly suspended for the possession count – where the operational period on each count was 12 months – whether the sentencing judge erred by failing to consider a relevant consideration, namely the applicant’s mental health – whether the sentencing discretion miscarried

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of distributing child exploitation material and one count of possessing child exploitation material – where the applicant was sentenced to nine months’ imprisonment wholly suspended for the distribution count and three months’ imprisonment wholly suspended for the possession count – where the operational period on each count was 12 months – whether the sentence imposed by the sentencing judge was manifestly excessive – whether the sentencing discretion miscarried

Criminal Code (Qld), s 228C, s 228D
Penalties and Sentences Act 1992 (Qld), s 9(4)(c), s 12, s 143, s 152

R v Bunton[2019] QCA 214, considered
R v Sperling[2021] QCA 40, considered
R v ZB (2021) 287 A Crim R 519; [2021] QCA 9, considered

COUNSEL:

J R Jones and N D Boyd for the applicant
E L Kelso for the respondent

SOLICITORS:

Potts Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MULLINS P and BOND JA: We have had the advantage of reading in draft the reasons for judgment of McMurdo JA. We agree with his Honour’s conclusions in relation 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 Tyrrell

Details

AGLC: R v Tyrrell [2022] QCA 157
Case: [2022] QCA 157
Decision Date: 26 August 2022

CaseChat Overview and Summary

The case of R v Tyrrell involved an appeal against sentence by the applicant, who had pleaded guilty to one count of distributing child exploitation material and one count of possessing child exploitation material. The applicant was sentenced to nine months’ imprisonment wholly suspended for the distribution count and three months’ imprisonment wholly suspended for the possession count, with an operational period of 12 months on each count. The primary issues before the court were whether the sentencing judge had erred in treating the offence in the distribution count as more serious than the offence in the possession count, whether the sentencing judge had failed to consider a relevant consideration, namely the applicant’s mental health, and whether the sentence imposed was manifestly excessive.

The court examined the principles governing the imposition of suspended sentences and the significance of the operational period. The court considered the principles of parity and proportionality in sentencing and whether the sentence imposed was manifestly excessive or inadequate. The court also assessed whether the sentencing judge had failed to consider a relevant consideration, specifically the applicant’s mental health. After a thorough analysis of the sentencing process and the principles of criminal law, the court concluded that the sentencing judge had not erred in treating the distribution offence as more serious and had not failed to consider the applicant’s mental health as a relevant factor. The court further found that the sentence imposed was not manifestly excessive.

As a result of this reasoning, the court determined that the applicant’s appeal against sentence did not succeed. The application for leave to appeal was refused, and the original sentence was upheld.

Orders

Orders of the court

The application for leave to appeal is refused.

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 Tyrrell [2022] QCA 157
PARTIES:	R v TYRRELL, Shane Noel (applicant)
FILE NO/S:	CA No 124 of 2022 DC No 601 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh – Date of Sentence: 22 June 2022 (Chowdhury DCJ)
DELIVERED ON:	26 August 2022
DELIVERED AT:	Brisbane
HEARING DATE:	22 August 2022
JUDGES:	Mullins P and McMurdo and Bond JJA
ORDER:	The application for leave to appeal is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to one count of distributing child exploitation material and one count of possessing child exploitation material – where the applicant was sentenced to nine months’ imprisonment wholly suspended for the distribution count and three months’ imprisonment wholly suspended for the possession count – where the operational period on each count was 12 months – whether the sentencing judge erred by treating the offence in the distribution count as more serious than the offence in the possession count – whether the sentencing discretion miscarried CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to one count of distributing child exploitation material and one count of possessing child exploitation material – where the applicant was sentenced to nine months’ imprisonment wholly suspended for the distribution count and three months’ imprisonment wholly suspended for the possession count – where the operational period on each count was 12 months – whether the sentencing judge erred by failing to consider a relevant consideration, namely the applicant’s mental health – whether the sentencing discretion miscarried CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of distributing child exploitation material and one count of possessing child exploitation material – where the applicant was sentenced to nine months’ imprisonment wholly suspended for the distribution count and three months’ imprisonment wholly suspended for the possession count – where the operational period on each count was 12 months – whether the sentence imposed by the sentencing judge was manifestly excessive – whether the sentencing discretion miscarried Criminal Code (Qld), s 228C, s 228D Penalties and Sentences Act 1992 (Qld), s 9(4)(c), s 12, s 143, s 152 R v Bunton[2019] QCA 214, considered R v Sperling[2021] QCA 40, considered R v ZB (2021) 287 A Crim R 519; [2021] QCA 9, considered
COUNSEL:	J R Jones and N D Boyd for the applicant E L Kelso for the respondent
SOLICITORS:	Potts Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent