R v CDF - [2024] QCA 207

SUPREME COURT OF QUEENSLAND

CITATION:

R v CDF [2024] QCA 207

PARTIES:

R
v
CDF
(applicant)

FILE NO/S:

CA No 252 of 2023
DC No 127 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich – Date of Sentence: 17 November 2023 (Power KC DCJ)

DELIVERED ON:

5 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2024

JUDGES:

Bond and Brown JJA and Kelly J

ORDER:

The application for leave to appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was convicted on his own pleas of guilty of maintaining an unlawful sexual relationship with his daughter, a child under 16 years, a domestic violence offence (count 1), and raping his daughter, a domestic violence offence (count 2) – where the applicant was sentenced to 10 years’ imprisonment on count 1, with the imposition of a serious violent offence declaration, and 7 years’ imprisonment on count 2 – where the sentencing judge made a material factual error by finding that the applicant did not wear a condom when he offended upon the complainant – where the Court was not obliged to re-sentence because the appropriate sentence for the applicant’s offending was either the same sentence or a greater sentence

Evidence Act 1977 (Qld), s 132C
Penalties and Sentences Act 1992 (Qld), s 9

Baxter v R (2007) 173 A Crim R 284; [2007] NSWCCA 237, considered
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, considered
R v BDQ (2022) 298 A Crim R 120; [2022] QCA 71, applied
R v LBC [2023] QCA 178, considered

COUNSEL:

L C Falcongreen for the applicant
R J Marks for the respondent

SOLICITORS:

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

BOND JA: On 11 August 2023 the applicant was convicted on his own pleas of guilty of the following offences:
(a)Count 1: That between 1 June 2019 and 1 June 2022 he maintained an unlawful sexual relationship with his daughter, a child under 16 years, with the aggravating feature that it was a domestic violence offence.
(b)Count 2: That on a date unknown between 3 December 2021 and 1 June 2022 he raped his daughter, that offence having the aggravating feature also that it was a domestic violence offence.
The proceeding was then adjourned for the purpose of obtaining a psychological report.
After a sentencing hearing on 17 November 2023 the applicant was sentenced to 10-years imprisonment in respect of count 1 and 7-years imprisonment on count 2. The sentence imposed on count 1 carried with it the imposition of a serious violent offence declaration and that declaration was made. The sentences were ordered to be served concurrently. 425 days of presentence custody were declared as time already served under the sentence.
The applicant applies for leave to appeal against his sentence on two bases.…

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 CDF

Details

AGLC: R v CDF [2024] QCA 207
Case: [2024] QCA 207
Decision Date: 5 November 2024

CaseChat Overview and Summary

The case of R v CDF involves an appeal against the applicant's sentence for his convictions of maintaining an unlawful sexual relationship with his daughter under the age of 16 and raping her. The applicant was sentenced to 10 years' imprisonment for the first offence, with a serious violent offence declaration, and 7 years for the second offence. The applicant's appeal against his sentence was based on a claim that the sentencing judge made a material factual error by finding that the applicant did not use a condom during the offence. The Court of Appeal was asked to determine whether this factual error was significant enough to warrant a re-sentencing or if the appropriate sentence for the applicant's offences was either the same or a greater sentence.

The primary legal issue the Court had to decide was whether the factual error made by the sentencing judge was significant enough to warrant a re-sentencing of the applicant. The Court held that it was not obliged to re-sentence the applicant because the appropriate sentence for his offending was either the same sentence or a greater sentence. The Court concluded that the error did not impact the overall sentencing outcome and that the applicant's sentence was appropriate.

The Court of Appeal found that the applicant's appeal against his sentence should be dismissed. The Court held that the factual error made by the sentencing judge was not significant enough to warrant a re-sentencing. The Court concluded that the appropriate sentence for the applicant's offending was either the same sentence or a greater sentence and that the applicant's sentence was appropriate. The Court of Appeal dismissed the application for leave to appeal, and the original sentence was upheld.

ORDERS:
The application for leave to appeal is dismissed.

Orders

Orders of the court

The application for leave to appeal is dismissed.

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

In light of the analysis conducted above, there is no utility to embarking upon a consideration of this proposed ground of appeal.Conclusion I would order that the application for leave to appeal be dismissed. BROWN JA: I agree with the reasons of Bond JA and the order proposed by his Honour. KELLY J: I agree with the reasons of Bond JA and the order proposed by his Honour.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v CDF [2024] QCA 207
PARTIES:	R v CDF (applicant)
FILE NO/S:	CA No 252 of 2023 DC No 127 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich – Date of Sentence: 17 November 2023 (Power KC DCJ)
DELIVERED ON:	5 November 2024
DELIVERED AT:	Brisbane
HEARING DATE:	28 August 2024
JUDGES:	Bond and Brown JJA and Kelly J
ORDER:	The application for leave to appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was convicted on his own pleas of guilty of maintaining an unlawful sexual relationship with his daughter, a child under 16 years, a domestic violence offence (count 1), and raping his daughter, a domestic violence offence (count 2) – where the applicant was sentenced to 10 years’ imprisonment on count 1, with the imposition of a serious violent offence declaration, and 7 years’ imprisonment on count 2 – where the sentencing judge made a material factual error by finding that the applicant did not wear a condom when he offended upon the complainant – where the Court was not obliged to re-sentence because the appropriate sentence for the applicant’s offending was either the same sentence or a greater sentence Evidence Act 1977 (Qld), s 132C Penalties and Sentences Act 1992 (Qld), s 9 Baxter v R (2007) 173 A Crim R 284; [2007] NSWCCA 237, considered Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, considered R v BDQ (2022) 298 A Crim R 120; [2022] QCA 71, applied R v LBC [2023] QCA 178, considered
COUNSEL:	L C Falcongreen for the applicant R J Marks for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent