R v Choomwantha - [2014] QCA 115

SUPREME COURT OF QUEENSLAND

CITATION:

R v Choomwantha [2014] QCA 115

PARTIES:

R
v
CHOOMWANTHA, Suriya
(applicant)

FILE NO/S:

CA No 245 of 2013
DC No 283 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

23 May 2014

DELIVERED AT:

Brisbane

HEARING DATE:

14 May 2014

JUDGES:

Muir and Gotterson JJA and Jackson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Leave to appeal against the sentence of 10 years imprisonment imposed for the offence of rape be granted.

2.    The appeal be allowed.

3.    The sentence of 10 years imprisonment and the serious violent offence declaration in respect thereof be set aside and a sentence of eight years be imposed in its place.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where after a 10 day trial the applicant was convicted of abducting and raping the five year old complainant – where the applicant was sentenced to 10 years imprisonment for the rape and to a concurrent term of five years imprisonment for the abduction – where the applicant attended a birthday party at which the complainant and her family were present – where the applicant took the complainant from the yard of the house to behind a parked car – where the applicant penetrated the complainant’s vagina with his finger – whether the sentence imposed by the sentencing judge was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 159A

R v AAD[2008] QCA 4, considered
R v BBE[2006] QCA 532, distinguished
R v Bielefeld[2002] QCA 369, considered
R v D[2003] QCA 88, distinguished
R v Lee[2012] QCA 313, considered
R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, applied
R v NH[2006] QCA 476, considered
R v PAA[2006] QCA 56, considered
R v RAH[2011] QCA 35, considered
R v Stoian[2012] QCA 41, distinguished

COUNSEL:

C Reid for the applicant
D C Boyle for the respondent

SOLICITORS:

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

MUIR JA: After a 10 day trial, the 46 year old applicant was convicted of abducting and raping the five year old complainant. He was sentenced to 10 years imprisonment for the rape and to a concurrent term of five years imprisonment for the abduction. His application for leave to appeal was in respect of both sentences but only the appeal against the sentence imposed for the rape offence was pursued on the hearing of the appeal.

The applicant, who had no criminal history, had a good work history and was providing financial support to his children and mother.

The applicant, who knew the complainant’s family, attended a birthday party at a house in Springfield on 13 November 2010. The complainant and her family…

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 Choomwantha

Details

AGLC: R v Choomwantha [2014] QCA 115
Case: [2014] QCA 115
Decision Date: 23 May 2014

CaseChat Overview and Summary

In the case of R v Choomwantha, the applicant was convicted by a jury of abducting and raping a five-year-old complainant. Following a 10-day trial, the applicant was sentenced to 10 years imprisonment for the offence of rape and to a concurrent term of five years for the offence of abduction. The applicant appealed against the sentence, contending that it was manifestly excessive. The appeal was heard by the NSW Court of Criminal Appeal.

The legal issues before the court were whether the sentence imposed by the sentencing judge was manifestly excessive and, if so, whether it warranted setting aside and substituting a lesser sentence. The court considered the severity of the offence, the applicant's criminal history, and the principles of sentencing outlined in relevant legislation and case law.

The court found that the sentence imposed by the sentencing judge was manifestly excessive. The court considered the severity of the offence, noting that the applicant had violated the trust and safety of a young child. However, the court also considered the applicant's previous good character and the possibility of rehabilitation. The court found that an eight-year sentence would be appropriate, taking into account the need for deterrence and denunciation, as well as the need to protect the community and the applicant's potential for rehabilitation.

The court allowed the appeal, set aside the sentence of 10 years imprisonment and the serious violent offence declaration in respect thereof, and imposed a sentence of eight years imprisonment in its place.

Orders

Orders of the court

1. Leave to appeal against the sentence of 10 years imprisonment imposed for the offence of rape be granted.

2. The appeal be allowed.

3. The sentence of 10 years imprisonment and the serious violent offence declaration in respect thereof be set aside and a sentence of eight years be imposed in its place.

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 Choomwantha [2014] QCA 115
PARTIES:	R v CHOOMWANTHA, Suriya (applicant)
FILE NO/S:	CA No 245 of 2013 DC No 283 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	23 May 2014
DELIVERED AT:	Brisbane
HEARING DATE:	14 May 2014
JUDGES:	Muir and Gotterson JJA and Jackson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Leave to appeal against the sentence of 10 years imprisonment imposed for the offence of rape be granted. 2. The appeal be allowed. 3. The sentence of 10 years imprisonment and the serious violent offence declaration in respect thereof be set aside and a sentence of eight years be imposed in its place.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where after a 10 day trial the applicant was convicted of abducting and raping the five year old complainant – where the applicant was sentenced to 10 years imprisonment for the rape and to a concurrent term of five years imprisonment for the abduction – where the applicant attended a birthday party at which the complainant and her family were present – where the applicant took the complainant from the yard of the house to behind a parked car – where the applicant penetrated the complainant’s vagina with his finger – whether the sentence imposed by the sentencing judge was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 159A R v AAD[2008] QCA 4, considered R v BBE[2006] QCA 532, distinguished R v Bielefeld[2002] QCA 369, considered R v D[2003] QCA 88, distinguished R v Lee[2012] QCA 313, considered R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, applied R v NH[2006] QCA 476, considered R v PAA[2006] QCA 56, considered R v RAH[2011] QCA 35, considered R v Stoian[2012] QCA 41, distinguished
COUNSEL:	C Reid for the applicant D C Boyle for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent