R v AP

[2003] QCA 445

SUPREME COURT OF QUEENSLAND

CITATION:

R v AP [2003] QCA 445

PARTIES:

R
v
AP
(applicant/appellant)

FILE NO/S:

CA No 133 of 2003
CA No 435 of 2002
DC No 365 of 2002

DIVISION:

Court of Appeal – Cairns Sittings

PROCEEDINGS:

Application for Extension (Conviction)
Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

17 October 2003

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2003

JUDGES:

McMurdo P, Davies JA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.  Grant the respondent’s application to amend the indictment by omitting “twenty-sixth” and substituting “third”; by omitting “1985” and substituting “1989” and by omitting “and had unlawful carnal knowledge of”.
2.  Refuse the application for an extension of time within which to appeal against conviction.

3.  Grant the application for leave to appeal against sentence and allow the appeal to the extent of substituting a sentence of 14 years imprisonment for the 15 years imprisonment imposed on counts 1 and 4.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PRACTICE – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME – where applicant convicted on four counts of sexual offences – where applicant seeks extension of time – whether conviction for count of maintaining an unlawful sexual relationship should be set aside because prosecution of that offence was not commenced with the consent of a Crown Law officer – whether conviction was defective in that it alleged an offence not known to law – whether trials on counts 2, 3 and 4 miscarried as a result of the evidence led on count 1

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where applicant found guilty on all sexual offences and sentenced to an effective term of 15 years imprisonment – whether learned sentencing judge wrongly influenced in determining the sentence by applicant’s uncharged conduct prior to 3 July 1989 – whether sentence imposed was manifestly excessive in all the circumstances

Criminal Code 1899 (Qld), s 229B, s 572

Gipp v R (1998) 194 CLR 106, referred to
Grierson v R (1938) CLR 431, considered
R v AH [2002] QCA 536; CA No 312 of 2002, 27 November 2002, referred to
R v Evans (1964) VR 717, followed
R v Fahey, Solomon and AD [2002] 1 Qd R 391, followed
R v L [2002] QCA 377; CA No 144 of 2002, 23 September 2002, followed
R v Mihans (2000) 9 Tas R 229, distinguished
Traveland Pty Ltd v Doherty (1982) 63 FLR 41, applied

COUNSEL:

B G Devereaux for the applicant/appellant
L J Clare for the respondent

SOLICITORS:

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

1. McMURDO P:  The applicant was convicted after a trial in the District Court at Townsville on 22 August 2002 of one count…