R v EH
[2009] QCA 71
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- R v EH[2009] QCA 71
- Add to List
R v EH[2009] QCA 71
R v EH[2009] QCA 71
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | DC No 302 of 2007 DC No 303 of 2007 |
Court of Appeal | |
PROCEEDING: | Miscellaneous Application – Criminal |
ORIGINATING COURT: | |
DELIVERED EX TEMPORE ON: | 26 March 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 26 March 2009 |
JUDGES: | McMurdo P and Holmes JA Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: |
|
CATCHWORDS: | Criminal law – sentence – sentencing orders – other matters – where applicant sought reopening of sentence imposed on appeal on the ground that, in allowing his appeal and reducing sentences on some counts, the Court inadvertently increased sentences on two other, lesser counts – where applicant’s submission correct |
COUNSEL: | Heard on the papers |
SOLICITORS: | Heard on the papers |
THE PRESIDENT: This appeal was heard by a Court comprising Holmes JA, Mackenzie AJA and me on 22 February 2008. The reasons were delivered on 28 March 2008. See R v EH [2008] QCA 67.
The appellant wrote to the Deputy Registrar Appeals raising some concerns about the formal orders made. As a result, this Court determined to reopen the sentence under s 188 Penalties and Sentences Act 1992 (Qld).
Mackenzie AJA is now retired from office. For the purposes of this reopening the Court is constituted by Holmes JA and me. See s 31 Supreme Court of Queensland Act 1991 (Qld).
The parties have requested the Court determine the matter on their written submissions only, without necessitating any further appearance by them in Court. The Court has acceded to that request and has now considered their written submissions. Justice Holmes will now deliver the reasons and further orders of the Court.
HOLMES JA: On 28 March 2008, the applicant was granted leave to appeal against sentence. The sentences imposed on him at first instance were set aside, and he was resentenced to six years and nine months imprisonment on one count of maintaining an unlawful sexual relationship with a child under 16 years; two years imprisonment on seven counts of indecent treatment; and six months imprisonment on a remaining count of indecent treatment.
He seeks a reopening under s 188 Penalties and Sentences Act 1992 (Qld) in respect of one aspect only of those sentences, on the basis that there was a "clear factual error of substance." That was, that the Court had overlooked the fact that the sentence imposed at first instance in respect of two of the indecent treatment counts was 12 months imprisonment.
The applicant points out that in respect of five of the counts of indecent treatment, which involved touching the genital areas of two boys, he had originally received sentences of four years imprisonment. But two other counts of indecent treatment, 3 and 4 on the indictment, which are the subject of the application here, involved offending of a different nature: showing the boys pornographic films. On those, he had received 12 month sentences.
It was the Court's intention, he submits, to reduce the sentences of four years imprisonment imposed on the majority of the indecent treatment counts to two years imprisonment, and it did so. But, in overlooking the fact that the two remaining counts had different, lesser sentences imposed at first instance, it had inadvertently doubled the sentences on those counts.
The applicant's submission is perfectly correct, and as much is accepted by the Crown. It is apparent from the leading judgment, which I wrote, that I did labour under the factual error he identifies. He is entitled to have the sentence corrected on counts 3 and 4. Counsel at the appeal did not suggest that those counts merited any different sentence from that imposed at first instance, and I see no reason to depart from the original sentences.
The sentence is reopened under s 188(1)(c). The applicant is resentenced in respect of counts 3 and 4, on indictment number 4428 of 2007, to 12 months imprisonment.
To put the matter beyond any doubt, the Court declares that the sentences of 12 months imprisonment on those counts have already been served by the applicant.