R v Crofts - [1998] QCA 60

IN THE COURT OF APPEAL	[1998] QCA 060
SUPREME COURT OF QUEENSLAND	C.A. No. 422 of 1997
Brisbane [R v. Crofts]

THE QUEEN

KEVIN JOHN CROFTS

(Applicant) Appellant
Fitzgerald P. Davies J.A. Moynihan J.

Judgment delivered 17 April 1998.
Judgment of the Court.

APPLICATION FOR EXTENSION OF TIME IN WHICH TO APPEAL AGAINST SENTENCE GRANTED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SENTENCE IMPOSED BELOW SET ASIDE AND IN LIEU THEREOF THE APPELLANT IS SENTENCED TO:

(A)	6 YEARS IMPRISONMENT FOR ATTEMPTED RAPE; AND
(B)	3 YEARS IMPRISONMENT FOR INDECENT ASSAULT; AND
(C)	18 MONTHS IMPRISONMENT FOR ASSAULT OCCASIONING BODILY HARM;

SENTENCES TO BE SERVED CONCURRENTLY.
DECLARE THAT 234 DAYS PRE-SENTENCE CUSTODY BE IMPRISONMENT

ALREADY SERVED UNDER THE SENTENCES

CATCHWORDS:	CRIMINAL LAW - application for extension of time in which to appeal against sentence - whether a single sentence can be imposed for a number of offences - whether there was a miscarriage of the trial judge’s sentencing discretion - totality principle - guilty plea entered late after applicant had absconded twice - previous convictions for offences of violence - lack of evidence of remorse - Penalties and Sentences Act 1992, ss. 4, 49, 97, 107.
Counsel:	Mr J.R. Hunter for the applicant/appellant. Mrs L. Clare for the respondent.
Solicitors:	Legal Aid Queensland for the applicant/appellant. Director of Public Prosecutions (Queensland) for the respondent.
Hearing date:	5 February 1998.
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 17 April 1998

This is an application for an extension of time in which to appeal against sentence. The ground of the proposed appeal is that the sentence is manifestly excessive. The delay is not great and there is some explanation for it. In the circumstances it is appropriate to look at the substance of the appeal.

The appellant pleaded guilty to one count of attempted rape, one count of
unlawful indecent assault and one count of assault occasioning bodily harm. The
offences were committed on the night of 26 June 1996 and involved the same woman.
The circumstances of the offence were that the victim was a young woman who
the appellant had come to know in the course of his employment and to whom he was
attracted. He invited her out for drinks and when he indicated that he might be
interested in a closer relationship with her she made it clear that she was not interested.
Without her consent the appellant drove her to an isolated place and assaulted her

causing her to suffer extensive bruising, abrasions and swelling. He attempted to rape

her, as the sentencing judge said, he:-

“. . came very close to doing that. (He) probably only failed because she managed to get her knee up between your legs . . . then she got out of the car and ran.”
There was assistance nearby and she got away from the appellant.
In sentencing the appellant, the judge below said:-
“I will impose one sentence for all these offences. It seems 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 Crofts

Details

AGLC: R v Crofts [1998] QCA 60
Case: [1998] QCA 60
Decision Date: 17/04/1998

CaseChat Overview and Summary

The applicant in this case, Crofts, was convicted of various offences and sentenced by the County Court. He applied for an extension of time to appeal against his sentence, arguing that there was a miscarriage of the trial judge's sentencing discretion. Crofts contended that a single sentence should have been imposed for the multiple offences, adhering to the totality principle. Additionally, he argued that his late guilty plea, entered after he had absconded twice, should have been taken into account. The applicant also highlighted his previous convictions for violent offences and the lack of evidence of remorse as factors that should have influenced the sentencing.

The court was required to determine whether the trial judge erred in imposing separate sentences for each offence, rather than a single cumulative sentence, and whether the totality principle should have been applied. The court also needed to assess whether the late guilty plea and the applicant's history of absconding and lack of remorse warranted consideration in the sentencing process. Furthermore, the court examined whether the applicant's previous convictions for violent offences should have been given greater weight in the sentencing decision.

The court found that the trial judge did not misapply the sentencing principles by imposing separate sentences for each offence. The court determined that the totality principle was not applicable in this case because the offences were not closely connected in time or circumstances. The court also held that the late guilty plea and the applicant's history of absconding did not warrant a reduction in sentence, given the seriousness of the offences and the applicant's lack of remorse. The court further found that the trial judge appropriately considered the applicant's previous convictions for violent offences in the sentencing decision.

The court dismissed the application for an extension of time to appeal against sentence, affirming the original sentence imposed by the County Court.

Orders