R v BDQ

Case [2022] QCA 71

SUPREME COURT OF QUEENSLAND

CITATION:

R v BDQ [2022] QCA 71

PARTIES:

R
v
BDQ
(applicant)

FILE NO/S:

CA No 162 of 2021
DC No 2497 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 25 June 2021 (Allen QC DCJ)

DELIVERED ON:

10 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2022

JUDGES:

Morrison and McMurdo JJA and Brown J

ORDER:

Leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant sought leave to appeal against sentence – where the applicant was convicted after trial of one count of maintaining a sexual relationship with a child, two counts of rape and one count of indecent treatment of a child under 16 who is a lineal descendant – where the applicant was sentenced on count 1 for 12 years’ imprisonment – where the applicant was declared to have been convicted of a serious violent offence – where the applicant was convicted but not further punished in relation to the remaining three counts – whether the sentence was manifestly excessive in all the circumstances

Criminal Code (Qld), s 210, s 215
Criminal Law (Domestic Violence) Amendment Bill (No. 2) 2015 (Qld)
Penalties and Sentences Act 1992 (Qld), s 9

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited
Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6, cited
Hill v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
R v BAO[2004] QCA 445, considered
R v BCA[2011] QCA 278, cited
R v BCW[2014] QCA 340, considered
R v C; Ex parte Attorney-General (Qld)[2003] QCA 134, considered
R v DBC; Ex parte Attorney – General (Qld)[2012] QCA 203, considered
R v DBV[2021] QCA 227, considered
R v Fenton [2015] QCA 125, considered
R v HCF[2021] QCA 189, considered
R v Muirhead; R v Muirhead; Ex parte Attorney-General (Qld)[2019] QCA 244, considered
R v O’Sullivan and Lee; Ex parte Attorney-General (Qld) (2019) 3 QR 196; [2019] QCA 300, considered
R v PAM[2011] QCA 36, considered
R v SAG (2004) 147 A Crim R 301; [2004] QCA 286, considered
R v SBJ[2009] QCA 100, considered
R v SCK[2016] QCA 34, considered
R v Tout[2012] QCA 296, cited

COUNSEL:

B J Power QC, with C R De Marco, for the applicant
D L Meredith for the respondent

SOLICITORS:

Guest Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. MORRISON JA:  I have had the advantage of reading the reasons for judgment of Brown J.  I agree with those reasons and with the orders proposed by her Honour.

  2. McMURDO JA:  I agree with Brown J.

  3. BROWN J:  BDQ was convicted after…

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R v BDQ [2022] QCA 71
Case
[2022] QCA 71
Decision Date

CaseChat Overview and Summary

The case of R v BDQ involved the applicant appealing against a sentence imposed following his conviction for maintaining a sexual relationship with a child, two counts of rape, and one count of indecent treatment of a child under 16 who is a lineal descendant. The applicant was sentenced to 12 years' imprisonment for the first count and declared to have been convicted of a serious violent offence. The remaining three counts were convicted but not further punished. The appeal was against the severity of the sentence, arguing it was manifestly excessive.

The legal issues before the court were whether the sentence imposed was manifestly excessive or inadequate. The applicant argued that the sentence was more severe than necessary, given his medical conditions and the precedent set by other cases. The court was required to determine if the sentence fell outside the range of appropriate sentences for such offences.

The court examined the nature and seriousness of the offending, considering it more severe than cases with longer periods of offending. It noted the statutory requirement to treat domestic violence offences as an aggravating factor, reflecting community attitudes towards such crimes. The court concluded that the sentence, while at the upper end of what might be appropriate, was within the sentencing discretion and did not exceed the range of sentences that could be imposed. The court found that the sentence was not manifestly excessive and denied leave to appeal.

Leave to appeal against sentence refused.

Orders

Orders of the court

Leave to appeal against sentence refused.

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

While the offending in R v DBV was for a much longer period, the offending in the present case was more serious and the applicant’s medical conditions were not such that his imprisonment would be more onerous than it was for other offenders.Consideration As the applicant’s counsel submitted, none of the cases analysed above involved the imposition of a 12 year sentence and could only support a sentence of 10 years. While a sentence of 10 years was open in the present case and the sentence of 12 years was at the upper end of what might be regarded as appropriate in the circumstances for this type of offending, it has not been demonstrated to be manifestly excessive and outside of the sentencing discretion. The above analysis of the cases demonstrates that it was within the sentencing discretion to impose the sentence of 12 years. The offending involved the aggravating features of regular penile intercourse of the complainant over a protracted period where the applicant was the complainant’s father and carer, with little by way of mitigation. The offending had a severe impact upon the complainant. The offences were also domestic violence offences which is an aggravating feature enshrined in statute. Section 9(10A) of the Penalties and Sentences Act provides that:“In determining the appropriate sentence for an offender convicted of a domestic violence offence, the court must treat the fact that it is a domestic violence offence as an aggravating factor, unless the court considers it is not reasonable because of the exceptional circumstances of the case.” In the explanatory notes to the Criminal Law (Domestic Violence) Amendment Bill (No. 2) 2015 the legislative intention in introducing the circumstance of aggravation was explained as follows:“An aggravating factor increases the culpability of an offender which means that the offender should receive a higher sentence within the existing sentencing range up to the maximum penalty for the offence. The amendment reflects community attitudes about the seriousness of criminal offences that occur in a domestic and family context and makes these offenders more accountable.” In R v O’Sullivan and Lee; Ex parte Attorney-General[41] (R v O’Sullivan) the Court of Appeal considered the introduction of a number of amendments to the Criminal Code Act 1899 (Qld) (the Criminal Code) and the Penalties Sentences Act designating a number of offences as domestic violence offences which may be taken into account as a factor of aggravation. As to legislative changes which have occurred including the insertion of s 9(10A) of the Penalties and Sentences Act in 2016, the Court stated that “This sequence of legislative changes since 1997 puts it beyond question that the legislature has made a judgment about the community’s attitude towards violent offences committed against children in domestic settings.”[42][41](2019) 3 QR 196; [2019] QCA 300.[42]At [93]. The present case does not concern manslaughter as was the case in R v O’Sullivan, but the legislative amendment also displays the community’s attitude towards sexual offences carried out against a child in a domestic setting.