R v B; ex parte - [2002] QCA 308

SUPREME COURT OF QUEENSLAND

CITATION:

R v B; ex parte A-G [2002] QCA 308

PARTIES:

R
v
B
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 141 of 2002
DC No 162 of 2002
DC No 164 of 2001
DC No 165 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

23 August 2002

DELIVERED AT:

Brisbane

HEARING DATE:

6 August 2002

JUDGES:

McPherson and Williams JJA and Holmes J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Allow the appeal.

2. Set aside the sentence imposed on Count 4 and substitute a sentence of two years imprisonment, to be served cumulatively on the sentences imposed on 8 June 2001.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent convicted of one count of carnal knowledge with a circumstance of aggravation, six counts of indecent dealing and one count of deprivation of liberty – where Attorney-General appeals against sentences imposed

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – whether trial judge erred in the exercise of the sentencing discretion – whether the sentences adequately reflected the offences before the court, considering existing convictions for like offences and mitigating factors – whether the totality principle applied

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – whether trial judge erred in attaching excessive weight to psychiatric reports detailing the effects of injuries previously suffered by respondent

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – whether the appellant has demonstrated manifest inadequacy in the sentence, supporting an inference that there was error

R v F [1996] QCA 490; CA No 418 of 1996, 6 December 1996, considered
R v Rossi (1988) 142 LSJS 451, applied
R v T [2002] QCA 132; CA No 30 of 2002, 12 April 2002, followed

COUNSEL:

R G Martin for the appellant
S Cousins for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Primrose Couper Cronin Rudkin for the respondent

McPHERSON JA: I agree with the reasons of Holmes J. The appeal should be allowed and the sentence imposed on count 4 should be increased to imprisonment for 2 years.

WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Holmes J, and there is…

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; ex parte

Details

AGLC: R v B; ex parte [2002] QCA 308
Case: [2002] QCA 308
Decision Date: 23 August 2002

CaseChat Overview and Summary

The Attorney-General for the Commonwealth has appealed against the sentences imposed on the respondent, B, who was convicted on various counts including carnal knowledge with aggravation, indecent dealing, and deprivation of liberty. The trial judge had sentenced B to a cumulative total of four years and three months imprisonment, which the Attorney-General argues is manifestly inadequate given the severity of the crimes committed.

The appeal raises several critical legal issues. First, the court needed to determine whether the trial judge erred in the exercise of sentencing discretion by not adequately reflecting the nature and gravity of the offences. This involved considering the existing convictions for similar offences and the mitigating factors presented by the respondent. Second, the court assessed whether the trial judge erred in attaching excessive weight to psychiatric reports detailing the effects of injuries previously suffered by the respondent, potentially skewing the sentencing process.

In examining the sentences, the court found that the trial judge had failed to properly consider the totality principle, which requires that the overall sentence adequately reflects the cumulative seriousness of the offences. Furthermore, the court held that the trial judge had indeed attached undue weight to the psychiatric reports, which led to an underestimation of the severity of the respondent's crimes. The court concluded that the Attorney-General had demonstrated manifest inadequacy in the sentences, warranting an appeal.

Accordingly, the appeal was allowed, and the sentence imposed on Count 4 was set aside. In its place, the court substituted a sentence of two years imprisonment, to be served cumulatively on the sentences imposed on 8 June 2001.

Orders

Orders of the court

1. Allow the appeal.

2. Set aside the sentence imposed on Count 4 and substitute a sentence of two years imprisonment, to be served cumulatively on the sentences imposed on 8 June 2001.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v B; ex parte A-G [2002] QCA 308
PARTIES:	R v B (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 141 of 2002 DC No 162 of 2002 DC No 164 of 2001 DC No 165 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	23 August 2002
DELIVERED AT:	Brisbane
HEARING DATE:	6 August 2002
JUDGES:	McPherson and Williams JJA and Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Allow the appeal. 2. Set aside the sentence imposed on Count 4 and substitute a sentence of two years imprisonment, to be served cumulatively on the sentences imposed on 8 June 2001.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent convicted of one count of carnal knowledge with a circumstance of aggravation, six counts of indecent dealing and one count of deprivation of liberty – where Attorney-General appeals against sentences imposed CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – whether trial judge erred in the exercise of the sentencing discretion – whether the sentences adequately reflected the offences before the court, considering existing convictions for like offences and mitigating factors – whether the totality principle applied CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – whether trial judge erred in attaching excessive weight to psychiatric reports detailing the effects of injuries previously suffered by respondent CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – whether the appellant has demonstrated manifest inadequacy in the sentence, supporting an inference that there was error R v F [1996] QCA 490; CA No 418 of 1996, 6 December 1996, considered R v Rossi (1988) 142 LSJS 451, applied R v T [2002] QCA 132; CA No 30 of 2002, 12 April 2002, followed
COUNSEL:	R G Martin for the appellant S Cousins for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Primrose Couper Cronin Rudkin for the respondent