R v D - [2003] QCA 455

SUPREME COURT OF QUEENSLAND

CITATION:

R v D [2003] QCA 455

PARTIES:

R
v
D
(applicant)

FILE NO/S:

CA No 118 of 2003
DC No 137 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

24 October 2003

DELIVERED AT:

Brisbane

HEARING DATE:

6 October 2003

JUDGES:

McPherson JA, Jones and Holmes JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Set aside the applicant’s conviction on and plea of guilty to so much of the charge in each count in the indictment as avers that the complainant was the lineal descendant of the applicant accused

2. Allow the application and appeal against sentence to the extent of reducing the head sentence on counts 11 and 12 from 7 to 6 years and the recommendation for parole from 2½ years to 2 years

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE & PROCEDURE – JUDGMENT & PUNISHEMENT – SENTENCE – FACTORS – CIRCUMSTANCES OF OFFENSE – step-grandfather committed offences – ‘lineal descendant’ not defined in Criminal Code (Qld) s 210 to include step-relationships – s 208 offence against a lineal descendant not an aggravating circumstance – sentencing judge took account of relationship in pre-sentencing observations – whether court required to exercise discretion afresh

Criminal Code (Qld), s 208, s 210, s 210(4), s 222(5)

R v Hansen [1999] QCA 465; CA 275 of 1999, 4 November 1999, distinguished

COUNSEL:

G Long for the applicant
R G Martin for the respondent

SOLICITORS:

Russo Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: The applicant pleaded guilty to an indictment in the District Court charging 24 counts of sexual offences committed on two children, a male and a female, who were described as his “step-grandchildren”. The meaning of this description is unclear. But it may perhaps be assumed that they were grandchildren of his wife who had previously been married to another man. The effective sentence imposed overall was one of 7 years, with a recommendation for parole after 2½ years.

The offences were committed between October 1997 and April 2002. The male child was aged between 11 and 15 years at the time of the offences against him; and the female 13 or 14. The applicant was between 68 and 73 at the time he committed the offences and 74 years old at sentencing in April of this year.

The offences against the boy amounting to indecent dealing (Criminal Code, s210) consisted of acts such as touching and rubbing his penis; having him rub the applicant’s penis; oral sex; and, much more seriously, on two occasions (counts 11 and 12) having the boy sodomise him (Code s 208). As to the girl, he touched or rubbed her on the breast with his hand and touched or kissed her on the vagina, although on all but possibly one occasion outside her clothing (indecent dealing, contrary to s 210).

According…

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 455
Case: [2003] QCA 455
Decision Date: 24 October 2003

CaseChat Overview and Summary

In the case of R v D, the appellant contested his conviction and sentence for a number of offences committed against a person who was his step-grandchild. The appellant argued that the court below erred in considering the step-relationship in the sentencing process. The Queensland Court of Appeal was tasked with determining whether the court below was required to exercise its discretion afresh given the sentencing judge's consideration of the step-relationship in the pre-sentencing observations.

The central issue before the Court of Appeal was whether the sentencing judge was required to exercise discretion afresh by considering that the term "lineal descendant" as used in the Criminal Code (Qld) s 210 did not include step-relationships. The appellant submitted that the court below should not have taken into account the step-relationship in its pre-sentencing observations, and therefore should have exercised its discretion afresh. The appellant further argued that s 208 of the Criminal Code (Qld) did not list offences against a lineal descendant as an aggravating circumstance.

The Court of Appeal held that the appellant's submission was correct in law, and the court below was required to exercise its discretion afresh. The Court found that the term "lineal descendant" as used in the Criminal Code (Qld) s 210 did not include step-relationships, and therefore the court below erred in considering the step-relationship in its pre-sentencing observations. The Court of Appeal also found that s 208 of the Criminal Code (Qld) did not list offences against a lineal descendant as an aggravating circumstance.

Accordingly, the Court of Appeal set aside the applicant's conviction on and plea of guilty to so much of the charge in each count in the indictment as avers that the complainant was the lineal descendant of the applicant accused. The Court also allowed the application and appeal against sentence to the extent of reducing the head sentence on counts 11 and 12 from 7 to 6 years and the recommendation for parole from 2½ years to 2 years.

Orders

Orders of the court

1. Set aside the applicant’s conviction on and plea of guilty to so much of the charge in each count in the indictment as avers that the complainant was the lineal descendant of the applicant accused

2. Allow the application and appeal against sentence to the extent of reducing the head sentence on counts 11 and 12 from 7 to 6 years and the recommendation for parole from 2½ years to 2 years

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 D [2003] QCA 455
PARTIES:	R v D (applicant)
FILE NO/S:	CA No 118 of 2003 DC No 137 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	24 October 2003
DELIVERED AT:	Brisbane
HEARING DATE:	6 October 2003
JUDGES:	McPherson JA, Jones and Holmes JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Set aside the applicant’s conviction on and plea of guilty to so much of the charge in each count in the indictment as avers that the complainant was the lineal descendant of the applicant accused 2. Allow the application and appeal against sentence to the extent of reducing the head sentence on counts 11 and 12 from 7 to 6 years and the recommendation for parole from 2½ years to 2 years
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE & PROCEDURE – JUDGMENT & PUNISHEMENT – SENTENCE – FACTORS – CIRCUMSTANCES OF OFFENSE – step-grandfather committed offences – ‘lineal descendant’ not defined in Criminal Code (Qld) s 210 to include step-relationships – s 208 offence against a lineal descendant not an aggravating circumstance – sentencing judge took account of relationship in pre-sentencing observations – whether court required to exercise discretion afresh Criminal Code (Qld), s 208, s 210, s 210(4), s 222(5) R v Hansen [1999] QCA 465; CA 275 of 1999, 4 November 1999, distinguished
COUNSEL:	G Long for the applicant R G Martin for the respondent
SOLICITORS:	Russo Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent