R v D

Case [2003] QCA 547 12 December 2003

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SUPREME COURT OF QUEENSLAND

CITATION:

R v D [2003] QCA 547

PARTIES:

R
v
D
(applicant)

FILE NO:

CA No 259 of 2003
DC No 3475 of 2000
DC No 3335 of 2002
DC No 3336 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

12 December 2003

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2003

JUDGES:

McPherson JA, Chesterman and Mullins JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused

CATCHWORDS:

CRIMINAL TRIAL - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - APPEAL BY CONVICTED PERSONS - APPLICATION TO REDUCE SENTENCE - SEXUAL OFFENCES - where applicant made subject to a sentence of indefinite duration pursuant to s 163 of the Penalties and Sentences Act 1992 (Qld) - where declaration of conviction of a serious violent offence - where serious risk of physical harm to members of the community if applicant released - interaction between Part 10 and s 204(1) of the Penalties and Sentences Act 1992 (Qld)

CRIMINAL LAW - JURISDICTION PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - FACTORS TO BE TAKEN INTO ACCOUNT - FACTUAL BASIS FOR SENTENCE - PLEA OF GUILTY - whether the imposition of the maximum sentence afforded a recognition of the applicant’s plea of guilty - whether plea of guilty given adequate weight as a factor of mitigation - whether plea of guilty must result in a reduction of sentence - where there is a discretion to impose the maximum penalty in cases in which an offender has pleaded guilty

Acts Interpretation Act 1954 (Qld), s 20 C(3)
Criminal Code (Qld), s 11(2), s 215
Penalties and Sentences Act 1992 (Qld), s 13, s 163, s 204

Cameron v The Queen (2002) 209 CLR 339, considered
R v Marshall [1993] 2 Qd R 307, considered
R v Mason; R v Saunders [1998] 2 Qd R 186, followed
R v P; ex parte Attorney-General(Qld) [2001] QCA 188, cited
R v Ridsdale (1995) 78 A Crim R 486, cited
R v Ruhland CA 147/1999, cited
Siganto v The Queen (1998) 194 CLR 656, considered
Veen v The Queen (No 1) (1979) 143 CLR 458, considered
Veen v The Queen (No. 2) (1988) 164 CLR 465, applied

COUNSEL:

A J Rafter, with P J Davis, for the applicant
P F Rutledge, with S P Vasta, for the respondent

SOLICITORS:

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

McPHERSON JA: I would refuse the application for leave to appeal against sentence. I agree with the reasons of Chesterman J.

CHESTERMAN J: The applicant is a paedophile. For almost 28 years, from January 1972 until September 1999 he molested young girls for his own sexual gratification. He has an obsession with pre-pubescent female genitalia which he indulged by touching, observing,…

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 D

Details

AGLC: R v D [2003] QCA 547
Case: [2003] QCA 547
Decision Date: 12 December 2003

CaseChat Overview and Summary

The appellant, D, appealed against his sentence, arguing that it was excessive. The Court of Appeal considered the appellant's submission that his plea of guilty should have resulted in a reduced sentence. The appellant was subject to a sentence of indefinite duration pursuant to s 163 of the Penalties and Sentences Act 1992 (Qld) for a serious violent offence, where there was a serious risk of physical harm to members of the community if the appellant were released. The appeal raised questions about the interaction between Part 10 and s 204(1) of the Penalties and Sentences Act 1992 (Qld) and whether the imposition of the maximum sentence afforded a recognition of the appellant’s plea of guilty.

The court examined the interaction between the relevant sections of the Penalties and Sentences Act 1992 (Qld) and the principles of sentencing, including the need to consider the plea of guilty as a mitigating factor. The court noted that s 163 of the Penalties and Sentences Act 1992 (Qld) provided for an indefinite sentence where there was a serious risk of physical harm to members of the community if the offender were released. However, s 204(1) of the same Act provided for the maximum penalty to be imposed where an offender pleaded guilty. The court considered the case law, including R v Mason; R v Saunders [1998] 2 Qd R 186, R v Ridsdale (1995) 78 A Crim R 486, and R v Ruhland CA 147/1999, which established that a plea of guilty should be considered as a mitigating factor but did not necessarily result in a reduced sentence. The court also noted that the appellant's sentence was within the maximum penalty for the offence and that the appellant's plea of guilty had been taken into account as a mitigating factor.

The Court of Appeal held that the appellant's plea of guilty had been adequately considered as a mitigating factor and that the imposition of the maximum sentence did not necessarily mean that the plea of guilty had not been taken into account. The court noted that there was a discretion to impose the maximum penalty in cases where an offender had pleaded guilty, and that the appellant's sentence was within the maximum penalty for the offence. The court held that there was no basis for the Court of Appeal to interfere with the sentence imposed by the trial judge. The application for a reduction in sentence was refused.

Orders

Orders of the court

Application refused

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v D [2003] QCA 547

Most Recent Citation

R v RDD [2004] QCA 403

Cases citing this decision · 8 of 8 shown

R v Griffith
[2024] QDC 207 Para 33

…;[26] (b) R v Mizner ;[27] (c) R v Robinson ;[28] (d) R v D ;[29] (e) R v Weldon .[30] [26][2023] QCA 56. [27][2019] QCA 198. [28][2007] QCA 99. [29][2003] QCA 547. [30][2006] QCA 504.…
R v BEB
[2023] QCA 105 Para 1

…question of the appropriate reflection of relevant mitigating circumstances, the sentencing judge outlined the principles stated in R v D [2003] QCA 547 and Mahony & Shenfield , and although he took the circumstances into account, declined to reduce the sentence of life imprisonment which he thought was warranted…
Farrell v Queensland Police Service
[2014] QDC 201 Para 1

…note that the penalty imposed on one of the disqualified driving charges involved the imposition of the maximum penalty as a head sentence. In R v D [2003] QCA 547 at [43] it was said that the maximum should be imposed in the worst category of case. It is easy to imagine worse categories e.g. a serious car accid…
R v Henderson; Ex parte Attorney-General (Qld)
[2013] QCA 63 Para 1

…, a sentence of imprisonment of 10 years or more necessarily attracts a minimum non-parole period of 80 per cent of the term of imprisonment.[20] [18][2003] QCA 547. [19][2012] QCA 366 at [52]. [20] Penalties and Sentences Act 1992 (Qld) ss 161A, 161B; Corrective Services Act 2006 (Qld) s 182.…
R v Mahony & Shenfield
[2012] QCA 366 Para 1

…maximum penalty in cases in which the offender has pleaded guilty.[22] No challenge was made to these propositions by the applicants here. [19] [2003] QCA 547. [20] Per Chesterman J (McPherson JA and Mullins J concurring) at [40]. [21] [1992] QCA 155; [1993] 2 Qd R 307. [22] Per Macrossan CJ at 311.…
R v Draoui
[2008] SASC 188 Para 7

…t there remains a discretion as to whether to give credit for a plea seems to be accepted at least in Queensland and New South Wales: see R v D [2003] QCA 547; R v Hoerler [2003] NSWSC 1187; Pillay v The Queen (2006) 167 A Crim R 312, 319.…
R v Weldon
[2006] QCA 504 Para 1

…imposed in this case, as it was in R v D .[3] It is sufficient to say that a notional head sentence of 25 years was open to the sentencing judge. [3][2003] QCA 547.…
R v RDD
[2004] QCA 403

…I would also add a reference to R -v- D [2003] QCA 547, in which two life sentences were imposed for a series of offences committed on 62 different girls over a period of 28 years by a man who was 45 years at the time of latest offence. Most of the victims were members of his church group, but they also included…

View all 8 citing cases →

Cases cited in this decision · 5 of 5 shown

Cameron v the Queen
[2002] HCA 6

…guilty Acts Interpretation Act 1954 (Qld), s 20 C(3) Criminal Code (Qld), s 11(2), s 215 Penalties and Sentences Act 1992 (Qld), s 13, s 163, s 204 Cameron v The Queen (2002) 209 CLR 339, considered R v Marshall [1993] 2 Qd R 307, considered R v Mason; R v Saunders [1998] 2 Qd R 186, followed R v P; ex parte Attorney-General…
R v P; ex parte A-G
[2001] QCA 188 Para 1

…from a sentence for similar offences. He was part of what was called a ‘paedophile ring’. The second case is R v P; ex parte Attorney -General [2001] QCA 188 in which 17 years imprisonment was awarded for an offender who had committed 236 offences including sodomy of eight boys. The third case, from Victoria, R v…
Siganto v the Queen
[1998] HCA 74

…186, followed R v P; ex parte Attorney-General(Qld) [2001] QCA 188, cited R v Ridsdale (1995) 78 A Crim R 486, cited R v Ruhland CA 147/1999, cited Siganto v The Queen (1998) 194 CLR 656, considered Veen v The Queen (No 1) (1979) 143 CLR 458, considered Veen v The Queen (No. 2) (1988) 164 CLR 465, applied COUNSEL: A J Rafter…
Veen v The Queen (No 2)
[1988] HCA 14

…147/1999, cited Siganto v The Queen (1998) 194 CLR 656, considered Veen v The Queen (No 1) (1979) 143 CLR 458, considered Veen v The Queen (No. 2) (1988) 164 CLR 465, applied COUNSEL: A J Rafter, with P J Davis, for the applicant P F Rutledge, with S P Vasta, for the respondent SOLICITORS: Legal Aid Queensland for t…
Veen v The Queen
[1979] HCA 7 Para 1

…ociety from the criminal whose behaviour needs to be punished. Their Honours quoted with approval remarks made by Mason J in Veen v The Queen (No. 1) (1979) 143 CLR 458 at 469:…

Legislation cited in this decision · 2

Acts Interpretation Act 1954 (Qld)
20 2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
13 2 mentions (from Para 1)

CITATION:	R v D [2003] QCA 547
PARTIES:	R v D (applicant)
FILE NO:	CA No 259 of 2003 DC No 3475 of 2000 DC No 3335 of 2002 DC No 3336 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	12 December 2003
DELIVERED AT:	Brisbane
HEARING DATE:	7 November 2003
JUDGES:	McPherson JA, Chesterman and Mullins JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused
CATCHWORDS:	CRIMINAL TRIAL - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - APPEAL BY CONVICTED PERSONS - APPLICATION TO REDUCE SENTENCE - SEXUAL OFFENCES - where applicant made subject to a sentence of indefinite duration pursuant to s 163 of the Penalties and Sentences Act 1992 (Qld) - where declaration of conviction of a serious violent offence - where serious risk of physical harm to members of the community if applicant released - interaction between Part 10 and s 204(1) of the Penalties and Sentences Act 1992 (Qld) CRIMINAL LAW - JURISDICTION PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - FACTORS TO BE TAKEN INTO ACCOUNT - FACTUAL BASIS FOR SENTENCE - PLEA OF GUILTY - whether the imposition of the maximum sentence afforded a recognition of the applicant’s plea of guilty - whether plea of guilty given adequate weight as a factor of mitigation - whether plea of guilty must result in a reduction of sentence - where there is a discretion to impose the maximum penalty in cases in which an offender has pleaded guilty Acts Interpretation Act 1954 (Qld), s 20 C(3) Criminal Code (Qld), s 11(2), s 215 Penalties and Sentences Act 1992 (Qld), s 13, s 163, s 204 Cameron v The Queen (2002) 209 CLR 339, considered R v Marshall [1993] 2 Qd R 307, considered R v Mason; R v Saunders [1998] 2 Qd R 186, followed R v P; ex parte Attorney-General(Qld) [2001] QCA 188, cited R v Ridsdale (1995) 78 A Crim R 486, cited R v Ruhland CA 147/1999, cited Siganto v The Queen (1998) 194 CLR 656, considered Veen v The Queen (No 1) (1979) 143 CLR 458, considered Veen v The Queen (No. 2) (1988) 164 CLR 465, applied
COUNSEL:	A J Rafter, with P J Davis, for the applicant P F Rutledge, with S P Vasta, for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent