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 2009DIVISION:
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 madeORDERS:
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, distinguishedCOUNSEL:
A W Moynihan SC, with L P Brisick, for the appellant
M A Green for the respondentSOLICITORS:
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…
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- Case
- [2009] QCA 396
- Decision Date
CaseChat Overview and Summary
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
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