R v Cosh - [2007] QCA 156

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cosh [2007] QCA 156

PARTIES:

R
v
COSH, Allan James
(applicant)

FILE NO/S:

CA No 83 of 2007
DC No 142 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

17 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

17 May 2007

JUDGES:

McMurdo P, Fryberg J and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPEAL BY CONVICTED PERSONS – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – where the applicant was sentenced on three counts of rape, one count of deprivation of liberty, and one count of assault occasioning bodily harm after a trial – where the applicant contended that lesser sentences had been imposed for more serious offences, but was unable to support those claims with comparable cases – where there was no remorse, no cooperation with the administration of justice, and an extensive criminal history but none for sexual offences – where the applicant was a mature man and pre-sentence reports suggested a significant risk of recidivism – whether the sentence imposed on the applicant was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 43C, Pt 9A

R v Rankmore; ex parte A-G (Qld)[2002] QCA 492, CA No 223 of 2002; CA No 285 of 2002; CA No 288 of 2002; 15 November 2002, applied
R v S[1997] QCA 287, CA No 186 of 1997, 25 July 2007, applied

COUNSEL:

The appellant appeared on his own behalf
R G Martin SC for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: The applicant was charged with 11 offences on one indictment, namely torture (count 1), deprivation of liberty (count 2), two counts of assault occasioning bodily harm (counts 3 and 4), one count of rape involving penile penetration (count 5), one count of rape involving penetration with the tongue (count 6), one count of rape involving digital penetration (count 7), one count of rape involving fellatio (count 8), one count of attempted anal rape (count 9) and a further count of rape involving penile penetration (count 11). A further count of rape (count 10) was withdrawn by the prosecutor during the trial.

The applicant pleaded not guilty to all counts on 8 August 2006. After a five day trial he was found not guilty on counts 1, 4, 7, 9 and 11 and guilty on the remaining counts, counts 2, 3, 5, 6 and 8.

The learned primary judge ordered that a pre-sentence report be prepared to include a psychological and/or psychiatric assessment and adjourned the sentence for that purpose, remanding the applicant in custody. He…

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 Cosh

Details

AGLC: R v Cosh [2007] QCA 156
Case: [2007] QCA 156
Decision Date: 17 May 2007

CaseChat Overview and Summary

The case of R v Cosh involved the applicant appealing against the sentence imposed after a trial on three counts of rape, one count of deprivation of liberty, and one count of assault occasioning bodily harm. The applicant argued that the sentence was manifestly excessive and that lesser sentences had been imposed for more serious offences, without providing comparable cases to substantiate this claim. The applicant's argument was further complicated by the absence of remorse, lack of cooperation with the administration of justice, and an extensive criminal history, which did not include prior sexual offences. The applicant was a mature man, and pre-sentence reports indicated a significant risk of recidivism.

The primary legal issue before the court was whether the sentence imposed on the applicant was manifestly excessive. The court considered the nature and circumstances of the offences, the applicant's criminal history, and the risk of recidivism. The applicant's lack of remorse and non-cooperation with the administration of justice also factored into the court's decision. The court meticulously examined the arguments presented and compared the sentence with those imposed in similar cases, finding that the sentence was not manifestly excessive.

In its reasoning, the court found that the applicant's extensive criminal history, which did not include prior sexual offences, and the absence of remorse, were significant factors. The court also noted the applicant's risk of recidivism, as suggested by pre-sentence reports. The court concluded that the sentence imposed was not manifestly excessive, given the severity of the offences and the applicant's criminal profile. As a result, the court dismissed the applicant's appeal against the sentence.

Orders

Orders of the court

Application to appeal against sentence refused

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 Cosh [2007] QCA 156
PARTIES:	R v COSH, Allan James (applicant)
FILE NO/S:	CA No 83 of 2007 DC No 142 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	17 May 2007
DELIVERED AT:	Brisbane
HEARING DATE:	17 May 2007
JUDGES:	McMurdo P, Fryberg J and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPEAL BY CONVICTED PERSONS – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – where the applicant was sentenced on three counts of rape, one count of deprivation of liberty, and one count of assault occasioning bodily harm after a trial – where the applicant contended that lesser sentences had been imposed for more serious offences, but was unable to support those claims with comparable cases – where there was no remorse, no cooperation with the administration of justice, and an extensive criminal history but none for sexual offences – where the applicant was a mature man and pre-sentence reports suggested a significant risk of recidivism – whether the sentence imposed on the applicant was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 43C, Pt 9A R v Rankmore; ex parte A-G (Qld)[2002] QCA 492, CA No 223 of 2002; CA No 285 of 2002; CA No 288 of 2002; 15 November 2002, applied R v S[1997] QCA 287, CA No 186 of 1997, 25 July 2007, applied
COUNSEL:	The appellant appeared on his own behalf R G Martin SC for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent