SUPREME COURT OF QUEENSLAND
CITATION: R v CBJ [2013] QCA 258 PARTIES:
R v CBJ
(applicant) FILE NO/S: CA No 87 of 2013
DC No 393 of 2012DIVISION: Court of Appeal PROCEEDING: Sentence Application ORIGINATING
COURT:District Court at Beenleigh DELIVERED ON: 13 September 2013 DELIVERED AT: Brisbane HEARING DATE: 15 August 2013 JUDGES: Muir and Fraser JJA and Atkinson J
Separate reasons for judgment of each member of the Court,
each concurring as to the orders madeORDERS:
1. The application for leave to appeal be granted. 2.
The appeal be allowed, but only to the extent that the sentences of 15 years imprisonment imposed in respect of counts 20, 22, 24, 29, 36, 37, 39 and 45 be set aside and sentences of 13 years imprisonment be substituted therefor.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant
pleaded guilty to 42 counts of sexual offences against his step-son and step-daughter – where the applicant was sentenced to 15 years imprisonment in respect of eight of the 10 counts of rape – where the applicant‟s offending occurred on four separate occasions over one month – where the applicant‟s offending was captured on a CCTV security
system thus diminishing the benefit of the applicant‟s early plea of guilty – where the applicant had relevant prior convictions which were less serious than the subject offending – where the applicant contends that the 15 year sentences imposed failed to give sufficient allowance for his early plea, the relatively brief duration of the offending and
the absence of a maintaining charge – where the applicant submits that a sentence of 13 years imprisonment is appropriate – whether the sentences imposed in respect of the eight counts of rape were manifestly excessive AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited Hudson v The Queen (2010) 30 VR 610; [2010] VSCA 332,
R v BBY [2011] QCA 69, considered
R v CAP [2009] QCA 174, considered
R v Corr; ex parte A-G (Qld) [2010] QCA 40, distinguished
R v Dickeson; ex parte A-G; R v Dickeson [2004] QCA 78,
considered
R v Dwyer [2008] QCA 117, cited
R v Flynn [2010] QCA 254, distinguished
R v HAD [2006] QCA 464, distinguished
R v KAC [2010] QCA 39, considered
R v Krieger unreported, Court of Criminal Appeal, Qld,
CA No 13 of 1991, 28 March 1991, considered
R v MBJ [2010] QCA 211, distinguished
R v NK (2008) 191 A Crim R 483; [2008] QCA 403,
considered
R v Robinson [2007] QCA 99, distinguished
R v Ruhland [1999] QCA 430, considered
R v S [1993] QCA 367, consideredcited cited
COUNSEL: J M McInnes for the applicant
D A Holliday for the…
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- AGLC
- R v CBJ [2013] QCA 258
- Case
- [2013] QCA 258
- Decision Date
CaseChat Overview and Summary
The legal issues the court was required to decide were whether the sentences imposed in respect of the eight counts of rape were manifestly excessive. The court had to consider the circumstances of the rapes, which were unusually sordid. The court also had to consider the comparable sentences relied on by the respondent, Flynn, Robinson and HAD. The court noted that the circumstances of the offences apart from the two rapes of the offender's 17 or 18-year-old daughter were not known due to the limited extent of the appeal and application for leave to appeal. The court considered the sentencing judge's observation that the offences of rape against the offender's own daughter "were at the highest level of depravity".
The court's reasoning and outcome were that the offender appealed against his convictions and sought leave to appeal against sentence only in respect of the rape sentences. The court was unsuccessful. The court noted that the circumstances of the rapes were unusually sordid. The court considered the comparable sentences relied on by the respondent, Flynn, Robinson and HAD. The court noted that the circumstances of the offences apart from the two rapes of the offender's 17 or 18-year-old daughter were not known due to the limited extent of the appeal and application for leave to appeal. The court considered the sentencing judge's observation that the offences of rape against the offender's own daughter "were at the highest level of depravity". The court concluded that the sentences imposed in respect of the eight counts of rape were not manifestly excessive.
The final orders were that the application for leave to appeal be granted, but only to the extent that the sentences of 15 years imprisonment imposed in respect of counts 20, 22, 24, 29, 36, 37, 39 and 45 be set aside and sentences of 13 years imprisonment be substituted therefor.
Orders
Orders of the court
1. The application for leave to appeal be granted.
2. The appeal be allowed, but only to the extent that the sentences of 15 years imprisonment imposed in respect of counts 20, 22, 24, 29, 36, 37, 39 and 45 be set aside and sentences of 13 years imprisonment be substituted therefor.
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
The offender appealed against his convictions and sought leave to appeal against sentence only in respect of the rape sentences. He was unsuccessful. The circumstances of the rapes were unusually sordid. On the first occasion, the offender coerced his pregnant daughter into permitting him to have intercourse with her by threatening to withhold money she needed to pay for the termination of her pregnancy. The second rape occurred shortly after the termination of the pregnancy from which the complainant was still bleeding. On that occasion, the offender forced himself on the resisting complainant asserting, in effect, that she had to repay him for his assistance in paying for the procedure. Consideration Of the comparable sentences relied on by the respondent, Flynn is of little assistance and Robinson has its limitations as does HAD. The offending in HAD occurred over a lengthy period and the sodomy and maintaining offences attracted eight year terms of imprisonment. The complainant in respect of the sodomy offence was only six. Because of the limited extent of the appeal and application for leave to appeal, little is known of the circumstances of the offences apart from the two rapes of the offender‟s 17 or 18 year old daughter. CAP involved offending against the offender‟s natural daughter and three nieces over a protracted period. Considerable physical violence was involved. The offender‟s daughter had a child as a result of one rape. The sentencing judge observed that the offences of rape against the offender‟s own daughter “were at the highest level of depravity”.[17] There was an indication that the offender would plead [17] guilty only a week before the trial and, as Jones J remarked, with the concurrence of MBJ is an example of a lengthy sentence imposed for a violent rape of a very young child in which the victim suffered considerable pain and physical injury. Like 19 Dickeson and NK appear to me to offer more useful comparisons for present purposes. Dickeson had two victims, one aged six and the other eight. The nature of the offending was generally similar to the applicant‟s although engaged in over In NK, the offender was in the same position of trust as the applicant. The offending was substantially similar in nature although limited to two incidents, not four as in the instant case (not including the matters the subject of counts 1 to 6). There were two counts of rape, whereas in the instant case there were 10. Although the victim in NK was only five, the applicant‟s offending was against two children, one of whom was only six. Ruhland (13 and a half years), Krieger (15 years) and BBY (14 and a half years) also provide some more general guidance. Ruhland and BBY involved grave offending against multiple victims over a lengthy period. Krieger appeared not to have the benefit of any mitigating circumstances other than his age and the absence of a criminal history. The offending in KAC (12 years) was at least as serious as the applicant‟s. It involved the rape of a three year old child and the violent rape of an