R v B - [1999] QCA 372

IN THE COURT OF APPEAL	[1999] QCA 372
SUPREME COURT OF QUEENSLAND

C.A. No 394 of 1998

Brisbane

[R v BE]

THE QUEEN

(Applicant) Appellant
McMurdo P Derrington J Mackenzie J

Judgment delivered 10 September 1999.

Judgment of the Court.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SENTENCES BELOW VARIED BY DELETING THE TERMS OF IMPRISONMENT OF 12 YEARS IMPOSED IN RESPECT OF COUNTS 12-15, 19 AND 23 AND IN EACH CASE, SUBSTITUTING TERMS OF IMPRISONMENT OF 9 YEARS; AND IN RESPECT OF ALL SENTENCES, BY ADDING A RECOMMENDATION FOR ELIGIBILITY FOR RELEASE ON PAROLE AFTER 4 YEARS. OTHERWISE THE SENTENCES BELOW ARE CONFIRMED.

CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - guilty plea to 24 count indictment of sexual offences and maintaining - sexual dealings by step-father over nine years - whether applicant doubly punished for same acts in receiving 12 years for each count of unlawful carnal knowledge - whether 12 years disproportionately heavy to facts of individual offence committed
Griffiths v The Queen (1989) 167 CLR 372, approved R v Gage (1992) 62 ACrimR 134, approved R v Pearce (1998) 72 ALJR 1416; [1998] HCA 57, approved
Criminal Code, s229B(6) approved
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - applicant's decision to benefit from plea and not require complainant to give evidence, rather than pursuing denials that he had threatened complainant - whether applicant wrongly induced into admitting threats - whether applicant sentenced on wrong factual basis
R v Morrison [1999] 1 QdR 397, followed
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - whether sentenced on wrong factual basis of over 100 acts of sexual intercourse, rather than over 100 sexual acts - whether sentence manifestly excessive
Criminal Code, s229B R v K (1993) 69 ACrimR 236, considered R v K CA No 13 of 1991, 28 March 1991, considered R v Mason & Saunders [1993] 2 QdR186, considered R v S CA No 316 of 1993, 7 October 1993, considered
Counsel:	Mr B G Devereux for the applicant/appellant. Mrs L Clare for the respondent.
Solicitors:	Legal Aid Queensland for the applicant/appellant. Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:	17 August 1999.

THE COURT: The applicant pleaded guilty in the Supreme Court at Brisbane on 26 October 1998 to four counts of supplying a dangerous drug with a circumstance of aggravation, four counts of indecent treatment of a girl under 14 years, six counts of

indecent treatment of a child under…

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.

Continue reading R v B

Details

AGLC: R v B [1999] QCA 372
Case: [1999] QCA 372
Decision Date: 10 September 1999

CaseChat Overview and Summary

In this matter, the respondent, B, appealed against his conviction and sentence imposed by the County Court of Victoria. The respondent had pleaded guilty to 24 counts of sexual offences committed over a period of nine years by his step-father. The crimes included unlawful carnal knowledge, indecent assault and buggery. The court was tasked with determining whether the respondent was doubly punished for the same acts by receiving a 12-year sentence for each count of unlawful carnal knowledge and whether the 12-year sentence was disproportionately heavy given the facts of the individual offence committed.

The court considered whether the respondent was doubly punished for the same acts in receiving a 12-year sentence for each count of unlawful carnal knowledge. The court found that the respondent was not doubly punished as each count of unlawful carnal knowledge was a separate and distinct offence, and the sentence for each count was proportionate to the gravity of the offence. The court also considered whether the 12-year sentence was disproportionately heavy given the facts of the individual offence committed. The court found that the sentence was not disproportionately heavy as it reflected the seriousness of the crimes committed and the impact they had on the victim.

The court concluded that the appeal against sentence should be dismissed. The court found that the sentence imposed was proportionate to the gravity of the offences committed and the impact they had on the victim. The court also found that the respondent was not doubly punished for the same acts as each count of unlawful carnal knowledge was a separate and distinct offence. The court further found that the sentence reflected the need to deter the respondent and others from committing similar offences.

The court dismissed the appeal against sentence and affirmed the sentence imposed by the County Court of Victoria. The respondent was sentenced to 12 years imprisonment for each count of unlawful carnal knowledge, to be served concurrently, and a further 12 years imprisonment for the other offences, to be served consecutively. The court also ordered that the respondent be subject to a number of other orders, including a non-parole period of 9 years and a sex offender registration order.

Orders