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 2008DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Brisbane
DELIVERED EX TEMPORE ON:
26 February 2009DELIVERED 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 madeORDERS:
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 160DR 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, citedCOUNSEL:
A J Edwards for the applicant/appellant
M B Lehane for the respondentSOLICITORS:
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…
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- AGLC
- R v Verburgt [2009] QCA 33
- Case
- [2009] QCA 33
- Decision Date
CaseChat Overview and Summary
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
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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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