R v CC - [2004] QCA 187

SUPREME COURT OF QUEENSLAND

CITATION:

R v CC [2004] QCA 187

PARTIES:

R
v
CC
(applicant)

FILE NO/S:

CA No 51 of 2004
DC No 6 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED EX TEMPORE ON:

31 May 2004

DELIVERED AT:

Townsville

HEARING DATE:

31 May 2004

JUDGES:

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

ORDERS:

1. Grant leave to appeal against sentence
2. Allow the appeal to the extent of adding to the sentence imposed a recommendation that the applicant be eligible to apply for post prison community based release after serving three years

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant convicted of two counts of rape and one count of indecent assault – where sentenced to eight years imprisonment – where offences occurred some 35 years prior to his plea of guilty – where applicant now 66 years of age – where applicant has demonstrated significant rehabilitation – where complainant was 12 years old at time of offences and violence was involved – whether sentence imposed sufficiently recognised the extent to which the applicant has rehabilitated himself – whether sentence imposed manifestly excessive

R v B [2004] QCA 182; CA No 49 of 2004, 28 May 2004, considered
R v Irlam; ex parte A-G (Qld) [2002] QCA 235; CA Nos 157 and 173 of 2002, 28 June 2002, considered
R v Losch, CA No 248 of 1980, Court of Criminal Appeal Queensland, considered
R v Pont [2002] QCA 456; CA No 213 of 2002, 28 October 2002, cited

COUNSEL:

A W Moynihan for the applicant
L J Clare for the respondent

SOLICITORS:

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

WILLIAMS JA: The applicant pleaded guilty in the District Court at Cairns on the 28th of January 2004, to two counts of rape and one count of indecent assault. He was sentenced to imprisonment for a period of eight years and seeks leave to appeal against that sentence on the ground that it is manifestly excessive. The events in question occurred some 35 years prior to the plea of guilty.

Between 1 September 1968 and 30 November 1968, the complainant, then a 12 year old girl, was temporarily living with the appellant and his wife while her mother was convalescing. The applicant was her uncle.

On an occasion during that period, he drove the complainant and her cousin to an isolated bush setting in his motor vehicle. He ordered the distressed complainant to remove her clothes. When she refused, he forced her into the vehicle and stripped her. He held a knife to her throat and then had sexual intercourse with her for a period of time. She was allowed to…

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 CC

Details

AGLC: R v CC [2004] QCA 187
Case: [2004] QCA 187
Decision Date: 31 May 2004

CaseChat Overview and Summary

The case of R v CC involved the applicant who was convicted of two counts of rape and one count of indecent assault. The offences occurred some 35 years prior to the applicant's plea of guilty, and at the time of sentencing, the applicant was 66 years of age. The applicant had demonstrated significant rehabilitation since the time of the offences. The complainant was 12 years old at the time of the offences, and the incidents involved violence.

The primary legal issues in this case were whether the sentence imposed by the court sufficiently recognised the extent of the applicant's rehabilitation and whether the sentence was manifestly excessive. The applicant argued that his age and the time elapsed since the offences, coupled with his demonstrated rehabilitation, should have been given more weight in the sentencing decision.

The court considered the principles of sentencing in relation to rehabilitation and the seriousness of the offences. It was noted that the applicant had shown significant rehabilitation, which is a relevant factor in sentencing. However, the court also emphasised the gravity of the offences, particularly the use of violence against a 12-year-old child. The court found that while the applicant's age and the time elapsed since the offences were relevant, they did not sufficiently mitigate the severity of the crimes committed. The court granted leave to appeal against the sentence and allowed the appeal to the extent of adding to the sentence imposed a recommendation that the applicant be eligible to apply for post-prison community-based release after serving three years. This decision reflects a balance between recognising the applicant's rehabilitation and the need to appropriately address the seriousness of the offences.

Orders

Orders of the court

1. Grant leave to appeal against sentence

2. Allow the appeal to the extent of adding to the sentence imposed a recommendation that the applicant be eligible to apply for post prison community based release after serving three years

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 CC [2004] QCA 187
PARTIES:	R v CC (applicant)
FILE NO/S:	CA No 51 of 2004 DC No 6 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED EX TEMPORE ON:	31 May 2004
DELIVERED AT:	Townsville
HEARING DATE:	31 May 2004
JUDGES:	McMurdo P, Williams JA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant leave to appeal against sentence 2. Allow the appeal to the extent of adding to the sentence imposed a recommendation that the applicant be eligible to apply for post prison community based release after serving three years
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant convicted of two counts of rape and one count of indecent assault – where sentenced to eight years imprisonment – where offences occurred some 35 years prior to his plea of guilty – where applicant now 66 years of age – where applicant has demonstrated significant rehabilitation – where complainant was 12 years old at time of offences and violence was involved – whether sentence imposed sufficiently recognised the extent to which the applicant has rehabilitated himself – whether sentence imposed manifestly excessive R v B [2004] QCA 182; CA No 49 of 2004, 28 May 2004, considered R v Irlam; ex parte A-G (Qld) [2002] QCA 235; CA Nos 157 and 173 of 2002, 28 June 2002, considered R v Losch, CA No 248 of 1980, Court of Criminal Appeal Queensland, considered R v Pont [2002] QCA 456; CA No 213 of 2002, 28 October 2002, cited
COUNSEL:	A W Moynihan for the applicant L J Clare for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent