R v Wharton; ex parte A-G (Qld) - [2009] QCA 396

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wharton; ex parte A-G (Qld) [2009] QCA 396

PARTIES:

R
v
WHARTON, David Leslie
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 252 of 2009
DC No 95 of 2009
DC No 96 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Maryborough

DELIVERED ON:

22 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

1 December 2009

JUDGES:

Holmes JA, Atkinson and Daubney JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal allowed only to the extent of varying the sentences to provide that each be suspended after 8 months has been served.

2.   The necessary warrant issue.

3.   The warrant lie in the Registry for a period of seven days from this judgment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – EXERCISE OF DISCRETION – GENERALLY – where the respondent was convicted of three counts of indecent dealing with a child, two counts of exposing a child to an indecent act, three counts of permitting himself to be indecently dealt with by a child and three summary offences – where respondent on each of the indecent treatment counts was sentenced to two years imprisonment, to be suspended after 114 days with an operational period of three years – where conviction recorded for summary offences but no further penalty imposed – where Attorney-General appealed against the sentences imposed for the indecent treatment offences – whether the sentencing judge erred in the exercise of his discretion

R v P[2001] QCA 130, considered
R v M [1995] QCA 394, distinguished
R v SBM[2009] QCA 115, distinguished

COUNSEL:

A W Moynihan SC, with L P Brisick, for the appellant
M A Green for the respondent

SOLICITORS:

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

HOLMES JA: I agree with the reasons of Daubney J and with the orders he proposes.

ATKINSON J: I agree with the orders proposed by Daubney J and with his Honour’s reasons.

DAUBNEY J: On 3 September 2009, the respondent was convicted, on his own pleas of guilty, of the following offences:

- three counts of indecent dealing with a child
- two counts of exposing a child to an indecent act
-three counts of permitting himself to be indecently dealt with by a child
-three summary offences of permitting his premises to be used for the purpose of possessing a dangerous drug and utensil.

On each of the indecent treatment counts, the respondent was sentenced to two years’ imprisonment, to be suspended after 114 days with an operational period of three years. The sentences were concurrent, and the 114 days pre-sentence custody were declared time served under this sentence. In respect of the summary offences, the respondent was convicted, but no further penalty was imposed.

The Attorney-General has…

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.

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Details

Case: [2009] QCA 396
Decision Date: 22 December 2009

CaseChat Overview and Summary

The appeal before the court concerned the respondent's conviction and sentencing for multiple counts of indecent dealings with a child, exposing a child to indecent acts, permitting himself to be indecently dealt with by a child, and summary offences. The Attorney-General, acting on behalf of the Crown, appealed against the sentences imposed by the trial judge for the indecent treatment offences, arguing that the trial judge had erred in the exercise of his discretion. The appeal was heard in the Queensland Court of Appeal.

The central legal issue before the court was whether the sentencing judge had erred in determining the length of the sentences for the indecent treatment offences. The court needed to determine if the trial judge's discretion in sentencing was exercised appropriately or if it warranted correction. This required a careful consideration of the nature and gravity of the offences, the respondent's culpability, and the principles of sentencing.

The court found that the sentences imposed for the indecent treatment offences were indeed too lenient. The court noted the gravity of the offences and the need for sentences that reflect the seriousness of such crimes. It was determined that the sentences should have been more punitive, reflecting the protection of children and the deterrence of similar offences in the future. The court varied the sentences to require the respondent to serve eight months before the sentences would be suspended. This decision was made in the interest of justice and to ensure that the sentences appropriately reflected the nature of the crimes committed.

The final orders of the court were that the appeal was allowed only to the extent of varying the sentences, with each sentence to be suspended after eight months of imprisonment. A warrant was issued for the execution of the new sentences, and it was directed to lie in the Registry for a period of seven days from the date of the judgment.

Orders

Orders of the court

1. Appeal allowed only to the extent of varying the sentences to provide that each be suspended after 8 months has been served.

2. The necessary warrant issue.

3. The warrant lie in the Registry for a period of seven days from this judgment.

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 Wharton; ex parte A-G (Qld) [2009] QCA 396
PARTIES:	R v WHARTON, David Leslie (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 252 of 2009 DC No 95 of 2009 DC No 96 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Maryborough
DELIVERED ON:	22 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	1 December 2009
JUDGES:	Holmes JA, Atkinson and Daubney JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal allowed only to the extent of varying the sentences to provide that each be suspended after 8 months has been served. 2. The necessary warrant issue. 3. The warrant lie in the Registry for a period of seven days from this judgment.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – EXERCISE OF DISCRETION – GENERALLY – where the respondent was convicted of three counts of indecent dealing with a child, two counts of exposing a child to an indecent act, three counts of permitting himself to be indecently dealt with by a child and three summary offences – where respondent on each of the indecent treatment counts was sentenced to two years imprisonment, to be suspended after 114 days with an operational period of three years – where conviction recorded for summary offences but no further penalty imposed – where Attorney-General appealed against the sentences imposed for the indecent treatment offences – whether the sentencing judge erred in the exercise of his discretion R v P[2001] QCA 130, considered R v M [1995] QCA 394, distinguished R v SBM[2009] QCA 115, distinguished
COUNSEL:	A W Moynihan SC, with L P Brisick, for the appellant M A Green for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent