R v Wharley

[2007] QCA 295

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wharley [2007] QCA 295

PARTIES:

R
v
WHARLEY, David Robert 

(applicant)

FILE NO/S:

CA No 190 of 2007

DC No 535 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

14 September 2007

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2007

JUDGES:

Jerrard and Holmes JJA and Philippides J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where the applicant was convicted of knowingly possessing child exploitation material and sentenced to six months’ imprisonment suspended after two months for an operational period of two years – whether the sentence imposed was manifestly excessive

Criminal Code 1899 (Qld), s 207A, s 228D
Penalties and Sentences Act 1992 (Qld), s 9(1), s 9(2)

Hutchins v The State of Western Australia [2006] WASCA 258, cited
R v Carmichael, unreported, Court of Criminal Appeal, Qld, CA No 160 of 1996, 19 July 1996, cited
R v Cook; ex parte Director of Public Prosecutions (Cth) [2004] QCA 469; CA No 324 of 2004, CA No 329 of 2004, 3 December 2004, cited
R v Daw[2006] QCA 386; CA No 195 of 2006, 5 October 2006, considered
R v Finch; ex parte A-G (Qld) [2006] QCA 60; CA No 319 of 2005, 10 March 2006, cited
R v Hamilton[2000] QCA 286; CA No 75 of 2000, 21 July 2000, cited
R v Jones (1999) 108 A Crim R 50, cited

R v Plunkett[2006] QCA 182; CA No 124 of 2006, 29 May 2006, considered

COUNSEL:

A Moynihan SC for the applicant

M R Byrne for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

[1]      JERRARD JA:  I agree with Philippides J, and with the order proposed by Her Honour.

[2]      HOLMES JA: I have had the advantage of reading the reasons for judgment of Philippides J and agree with her Honour’s conclusions. Once it was accepted, as counsel on appeal did accept, that imprisonment was warranted in this case, the real issue was whether a sentence involving actual custody was open, given the principle in s 9(2)(a)(ii) of the Penalties and Sentences Act1992 (Qld) that a sentence allowing the offender to stay in the community is preferable.

[3] There was, as Philippides J has observed, no error in the way in which the learned sentencing Judge approached the sentencing exercise by reference to the s 9(2) considerations. It seems to me not possible, then, to say that it was not open to the sentencing Judge in the exercise of his discretion, and having regard to the s 9(2)(a)(i)…