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R v Verburgt

R v Verburgt

Case [2009] QCA 33 26 February 2009

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Verburgt [2009] QCA 33

PARTIES:

R
v
VERBURGT, Glen Jon
(applicant/appellant)

FILE NO/S:

CA No 358 of 2008
DC No 3385 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

26 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

26 February 2009

JUDGES:

McMurdo P, Holmes JA and Chesterman JA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application for leave to appeal granted;

2.   Appeal allowed;

3.   Sentences imposed at first instance set aside;

4.   On count 1, applicant convicted and released upon his giving security by recognizance under s 20 of the Crimes Act 1914 (Cth) to be of good behaviour for a period of two years;

5.   On count 2, applicant sentenced to six months imprisonment suspended forthwith with an operational period of two years.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where applicant pleaded guilty to one count of using a carriage service to access child pornography material (a Commonwealth offence) and one count of knowingly possessing child exploitation material (under s 228D of the Criminal Code) – where applicant sentenced on count 1 to 12 months imprisonment, with release after three months on recognizance, and, on count 2, to 12 months imprisonment with an order for release on parole after four months – where applicant was 39 years old, had a good work history, had commenced counselling, had no criminal history, co-operated with police, made admissions and showed remorse – where sentencing discretion miscarried because sentencing judge wrongly fixed a parole release date on count 2, and, on count 1, failed to advert to s 17A of the Crimes Act 1914 (Cth) – where amendments to the Penalties and Sentences Act 1992 (Qld) render s 9(2)(a) inapplicable to an offence against s 228D – whether any person convicted of an offence against s 228D must be sentenced to actual imprisonment – whether sentence manifestly excessive

Criminal Code 1899 (Qld), s 228D
Penalties and Sentences Act 1992 (Qld), s 9(6A), s 9(6B), s 160B, s 160D

R v Daw[2006] QCA 386, cited
R v Richardson; ex parte A-G (Qld)[2007] QCA 294, cited
R v Riley[2007] QCA 391, cited
R v Wharley[2007] QCA 295, cited

COUNSEL:

A J Edwards for the applicant/appellant
M B Lehane for the respondent

SOLICITORS:

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

THE PRESIDENT: Justice Holmes will deliver her reasons first.

HOLMES JA: The applicant seeks leave to appeal against a sentence of 12 months imprisonment, with release after three months on recognizance, for an offence of using a carriage service to access child pornography material (a Commonwealth offence) and a sentence of 12 months imprisonment with an order for release on parole after…

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 Verburgt

Details

AGLC: R v Verburgt [2009] QCA 33
Case: [2009] QCA 33
Decision Date: 26 February 2009

CaseChat Overview and Summary

The applicant in this case pleaded guilty to two counts: using a carriage service to access child pornography material and possessing child exploitation material. The case was heard in the Queensland Court of Appeal. The applicant was sentenced to 12 months imprisonment on each count, with specific conditions for release on recognizance and parole. The applicant appealed against the sentence, arguing that the judge had acted on the wrong principles by not considering certain mitigating factors and statutory provisions correctly.

The primary legal issue before the court was whether the sentencing judge had erred in setting the conditions for parole and in failing to consider the relevant statutory provisions. Specifically, the court needed to determine whether the judge misapplied the law by setting a parole release date for the second count and whether the mandatory imprisonment requirement under section 228D of the Criminal Code applied. Additionally, the court had to decide if the sentence imposed was manifestly excessive.

The court found that the sentencing judge had indeed erred in setting the parole release date for the second count and in not considering section 17A of the Crimes Act 1914 (Cth). The court also noted that amendments to the Penalties and Sentences Act 1992 (Qld) made it clear that section 9(2)(a) was inapplicable to an offence against section 228D, meaning that a custodial sentence was not mandatory. The court held that the sentence was manifestly excessive given the applicant's background and mitigating factors. Consequently, the appeal was allowed, and the sentences set aside. The court ordered that the applicant be released upon giving security by recognizance for good behaviour for two years on the first count and sentenced to six months imprisonment suspended forthwith with an operational period of two years on the second count.

Orders

Orders of the court

1. Application for leave to appeal granted;

2. Appeal allowed;

3. Sentences imposed at first instance set aside;

4. On count 1, applicant convicted and released upon his giving security by recognizance under s 20 of the Crimes Act 1914 (Cth) to be of good behaviour for a period of two years;

5. On count 2, applicant sentenced to six months imprisonment suspended forthwith with an operational period of two years.

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

R v Verburgt [2009] QCA 33

Most Recent Citation

R v Sykes [2009] QCA 267

Cases citing this decision · 13 of 13 shown

R v OAB
[2024] QCA 51 Para 13

…g . The sentencing judge had regard to the sentencing purposes of rehabilitation, general deterrence, and denunciation. [1][2011] QCA 147. [2][2009] QCA 33. [3][2022] QCA 157. [4][2021] QCA 40.…
Lee v R
[2020] NSWCCA 307

…e Commonwealth offence it is established by authority: R v Engeln [2014] QCA 313 at [45] (citing the earlier decision of that court in R v Verburgt [2009] QCA 33).”…
R v Monohan
[2020] NSWDC 611 Para 60

…Mr Hemsley has referred me to R v Verburgt [2009] QCA 33. That case was referred to in Sykes . The applicant’s appeal was successful. On the Commonwealth offence he was convicted and released on a good behaviour bond for a period of two years. He had spent two months in gaol before his successful appeal. Origina…
R v Dundas
[2017] QCA 107 Para 16

…s to police whilst the search was being conducted and consented to the search of his premises; and (6)the applicant had no prior criminal history. [2][2009] QCA 33 at [7].…
R v Cole
[2016] QCA 307 Para 4

…the sentence imposed was not according to law, it is necessary for this Court to re-exercise the sentencing discretion[39]. [39]Compare R v Verburgt [2009] QCA 33 at pp 3-4.…
Fedele v R
[2015] NSWCCA 286 Para 26

…the Commonwealth offence it is established by authority: R v Engeln [2014] QCA 313 at [45] (citing the earlier decision of that court in R v Verburgt [2009] QCA 33).…
R v MacDonald
[2015] QCA 253 Para 6

…, the legislative change does not necessarily have any bearing on the head sentences regarded as appropriate in those cases.” [22] R v Verburgt [2009] QCA 33. ( Verburgt ) [23] Verburgt at page 6. See also McMurdo P at page 7. See also R v Lovi [2012] QCA 24 at [37] per Muir JA, de Jersey CJ and Atkinson J concu…
R v Engeln
[2014] QCA 313 Para 1

…sentence, it may constitute an error requiring this court to exercise the sentencing discretion having proper regard to s 17A.[15] [15] R v Verburgt [2009] QCA 33.…
R v Lovi
[2012] QCA 24 Para 1

…fewer than 200 still images were downloaded. [3] R v Sykes [2009] QCA 267; R v Smith [2010] QCA 220; R v Jones [2011] QCA 147; and R v Verburgt [2009] QCA 33.…
R v Hickey
[2011] QCA 385 Para 1

…R v Verburgt [2009] QCA 33 was a much less serious example of the offence, because so few images were involved. The offender was sentenced to 12 months’ imprisonment with a release after three months on recognizance for the Commonwealth offence of using a carriage service to access child pornography material and…
R v Smith
[2010] QCA 220 Para 1

…a of offending. It is proposed to discuss only those relied upon by counsel. See generally, R v Vantoosten [2009] QCA 54. [9]See R v Verburgt [2009] QCA 33 and the discussion about the ambit of the exception of sexual offending against children from s 9(2). [10] R v Grehan [2010] QCA 42 per Chesterman JA at [42]…
R v Grehan
[2010] QCA 42 Para 1

…The applicant in R v Verburgt [2009] QCA 33 was sentenced to 12 months imprisonment with release after three months on recognizance for an offence of using a carriage service to access child pornography material and a sentence of 12 months imprisonment, with release on parole after four months, for possessing CE…
R v Sykes
[2009] QCA 267 Para 1

…In R v Verburgt [2009] QCA 33 ( Verburgt ) the offender was sentenced to 12 months’ imprisonment, with release after three months on recognizance, for the Commonwealth accessing offence in respect of downloading four images of CEM from a Croatian website and a sentence of 12 months’ imprisonment with an order fo…

View all 13 citing cases →

Cases cited in this decision · 5 of 5 shown

R v Salsone; ex parte A-G (Qld)
[2008] QCA 220

…Finally, in R v Salsone; ex parte A-G (Qld) [2008] QCA 220, the Attorney-General appealed against sentences involving probation and community service without conviction imposed on a 21 year old offender who had pleaded guilty to one count of distributing and one count of possession child exploitation material. Th…
R v Riley
[2007] QCA 391

…9(6A), s 9(6B), s 160B, s 160D R v Daw [2006] QCA 386, cited R v Richardson; ex parte A-G (Qld) [2007] QCA 294, cited R v Riley [2007] QCA 391, cited R v Wharley [2007] QCA 295, cited COUNSEL: A J Edwards for the applicant/appellant M B Lehane for the respondent SOLICITORS: Legal Aid Queensland for the applicant/…
R v Wharley
[2007] QCA 295

…Daw [2006] QCA 386, cited R v Richardson; ex parte A-G (Qld) [2007] QCA 294, cited R v Riley [2007] QCA 391, cited R v Wharley [2007] QCA 295, cited COUNSEL: A J Edwards for the applicant/appellant M B Lehane for the respondent SOLICITORS: Legal Aid Queensland for the applicant/appellant Director of Public Prose…
R v. Richardson ; ex parte A-G (Qld)
[2007] QCA 294

…and Sentences Act 1992 (Qld), s 9(6A), s 9(6B), s 160B, s 160D R v Daw [2006] QCA 386, cited R v Richardson; ex parte A-G (Qld) [2007] QCA 294, cited R v Riley [2007] QCA 391, cited R v Wharley [2007] QCA 295, cited COUNSEL: A J Edwards for the applicant/appellant M B Lehane for the respondent SOLICITORS: Legal A…
R v Daw
[2006] QCA 386

…tly excessive Criminal Code 1899 (Qld), s 228D Penalties and Sentences Act 1992 (Qld), s 9(6A), s 9(6B), s 160B, s 160D R v Daw [2006] QCA 386, cited R v Richardson; ex parte A-G (Qld) [2007] QCA 294, cited R v Riley [2007] QCA 391, cited R v Wharley [2007] QCA 295, cited COUNSEL: A J Edwards for the applicant/ap…

Legislation cited in this decision · 3

Penalties and Sentences Act 1992 (Qld)
160B, 9(6A) 3 mentions
Corrective Services Act 2006 (Qld)
1 mention
Crimes Act 1914 (Cth)
1 mention

CITATION:	R v Verburgt [2009] QCA 33
PARTIES:	R v VERBURGT, Glen Jon (applicant/appellant)
FILE NO/S:	CA No 358 of 2008 DC No 3385 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	26 February 2009
DELIVERED AT:	Brisbane
HEARING DATE:	26 February 2009
JUDGES:	McMurdo P, Holmes JA and Chesterman JA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal granted; 2. Appeal allowed; 3. Sentences imposed at first instance set aside; 4. *On count 1, applicant convicted and released upon his giving security by recognizance under s 20 of the Crimes Act* 1914 (Cth) to be of good behaviour for a period of two years; 5. On count 2, applicant sentenced to six months imprisonment suspended forthwith with an operational period of two years.**
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where applicant pleaded guilty to one count of using a carriage service to access child pornography material (a Commonwealth offence) and one count of knowingly possessing child exploitation material (under s 228D of the Criminal Code) – where applicant sentenced on count 1 to 12 months imprisonment, with release after three months on recognizance, and, on count 2, to 12 months imprisonment with an order for release on parole after four months – where applicant was 39 years old, had a good work history, had commenced counselling, had no criminal history, co-operated with police, made admissions and showed remorse – where sentencing discretion miscarried because sentencing judge wrongly fixed a parole release date on count 2, and, on count 1, failed to advert to s 17A of the Crimes Act 1914 (Cth) – where amendments to the Penalties and Sentences Act 1992 (Qld) render s 9(2)(a) inapplicable to an offence against s 228D – whether any person convicted of an offence against s 228D must be sentenced to actual imprisonment – whether sentence manifestly excessive Criminal Code 1899 (Qld), s 228D Penalties and Sentences Act 1992 (Qld), s 9(6A), s 9(6B), s 160B, s 160D R v Daw[2006] QCA 386, cited R v Richardson; ex parte A-G (Qld)[2007] QCA 294, cited R v Riley[2007] QCA 391, cited R v Wharley[2007] QCA 295, cited
COUNSEL:	A J Edwards for the applicant/appellant M B Lehane for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Qld) for the respondent