R v D
Case
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[2003] QCA 455
•24 October 2003
Details
AGLC
Case
Decision Date
R v D [2003] QCA 455
[2003] QCA 455
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.
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.
Details
Key Legal Topics
Areas of Law
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Criminal Law
Legal Concepts
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Jurisdiction
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Sentencing
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Aggravating Circumstances
Actions
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Citations
R v D [2003] QCA 455
Most Recent Citation
R v HJP [2010] QDC 215