R v Cogdale - [2004] QCA 129

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cogdale [2004] QCA 129

PARTIES:

R
v
COGDALE, David Leonard
(applicant)

FILE NO/S:

CA No 409 of 2003
DC No 569 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED EX TEMPORE ON:

23 April 2004

DELIVERED AT:

Brisbane

HEARING DATE:

23 April 2004

JUDGES:

Davies, Williams and Jerrard JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where applicant convicted of burglary, taking a child for immoral purposes and unlawfully exposing a child under 16 to an indecent act – where learned sentencing judge found the offences involved pre-planning – where applicant pleaded guilty and demonstrated genuine remorse – whether sentence manifestly excessive because of failure to add either a partial suspension or recommendation for parole

R v Butler [1996] QCA 264; CA No 196 of 1996, 9 August 1996, distinguished
R v Dixon [1999] QCA 251; CA No 142 of 1999, 7 July 1999, distinguished
R v Tappi [1996] QCA 46; CA No 420 of 1995, 6 February 1996, distinguished

COUNSEL:

M J Byrne QC for the appellant
A J Rafter SC for the respondent

SOLICITORS:

Roberts Nehmer McKee for the appellant
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: This is an application for leave to appeal against a sentence of five years imprisonment imposed after the applicant pleaded guilty to one count of burglary, one count of taking a child for immoral purposes and one count of unlawfully exposing a child under the age of 16 to an indecent act.

The offences occurred on 18 April 2003. At that time the complainant child was aged eight. The maximum penalties to which the applicant was exposed were life for the burglary, 14 years for the child stealing, and 10 years for the exposure of a child to an indecent act.

The relevant circumstances can be briefly stated. The complainant child lived with her parents and younger brother in a rented house in Kirwin. On the evening in question the complainant child was put to bed after which her parents watched a football match on television.

The applicant removed a flyscreen from the complainant's bedroom window, lifted the child from her bed, carried her down the street and through a car park to where his car was located.

He then drove the complainant girl to an isolated spot some distance away. The complainant was crying and asking to be taken home. The applicant told her that if she was quiet he would take her home. After stopping the vehicle, the applicant got into the back seat with the girl and masturbated himself until he ejaculated on his leg. That was witnessed by the complainant girl.…

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 Cogdale

Details

AGLC: R v Cogdale [2004] QCA 129
Case: [2004] QCA 129
Decision Date: 23 April 2004

CaseChat Overview and Summary

In the case of R v Cogdale, the applicant was convicted of burglary, taking a child for immoral purposes, and unlawfully exposing a child under 16 to an indecent act. The applicant subsequently appealed against the sentence imposed by the learned sentencing judge. The central issue before the court was whether the sentence was manifestly excessive due to the absence of a partial suspension or a recommendation for parole, despite the applicant's guilty plea and demonstration of genuine remorse. The applicant argued that the sentence should be reconsidered in light of these factors and the pre-planning involved in the offences.

The court considered the principles of sentencing and the factors that must be taken into account, including the nature and circumstances of the offence, the offender's culpability, and any mitigating factors. The sentencing judge had explicitly found the offences involved pre-planning, which the court acknowledged as an aggravating factor. However, the court also noted the applicant's guilty plea and genuine remorse, which were mitigating factors. Despite these considerations, the court held that the sentence was not manifestly excessive. The court found that the sentencing judge had adequately balanced the various factors and appropriately determined the appropriate penalty.

Accordingly, the court dismissed the application for leave to appeal against the sentence. The reasoning was grounded in the comprehensive assessment made by the sentencing judge and the principles of sentencing that guided their decision. The court was satisfied that the sentence imposed was commensurate with the seriousness of the offences and the circumstances in which they were committed.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

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 Cogdale [2004] QCA 129
PARTIES:	R v COGDALE, David Leonard (applicant)
FILE NO/S:	CA No 409 of 2003 DC No 569 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED EX TEMPORE ON:	23 April 2004
DELIVERED AT:	Brisbane
HEARING DATE:	23 April 2004
JUDGES:	Davies, Williams and Jerrard JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where applicant convicted of burglary, taking a child for immoral purposes and unlawfully exposing a child under 16 to an indecent act – where learned sentencing judge found the offences involved pre-planning – where applicant pleaded guilty and demonstrated genuine remorse – whether sentence manifestly excessive because of failure to add either a partial suspension or recommendation for parole R v Butler [1996] QCA 264; CA No 196 of 1996, 9 August 1996, distinguished R v Dixon [1999] QCA 251; CA No 142 of 1999, 7 July 1999, distinguished R v Tappi [1996] QCA 46; CA No 420 of 1995, 6 February 1996, distinguished
COUNSEL:	M J Byrne QC for the appellant A J Rafter SC for the respondent
SOLICITORS:	Roberts Nehmer McKee for the appellant Director of Public Prosecutions (Queensland) for the respondent