R v D - [2003] QCA 150

SUPREME COURT OF QUEENSLAND

CITATION:

R v D [2003] QCA 150

PARTIES:

R
v
D
(appellant)

FILE NO/S:

CA No 338 of 2002
DC No 70 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Kingaroy

DELIVERED ON:

4 April 2003

DELIVERED AT:

Brisbane

HEARING DATE:

28 February 2003

JUDGES:

McMurdo P, Davies JA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE - where appellant sentenced to seven years imprisonment for four counts of rape and two years concurrent imprisonment for one count of indecent dealing - whether sentence manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – UNREASONABLE OR INSUPPORTABLE VERDICT - where appellant convicted of rape and indecent dealing - where counts spanned a period of six years and were nearly 20 years old - where complainant’s evidence was uncorroborated on all counts - whether evidence was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty - whether convictions were unsafe and unsatisfactory and against the weight of the evidence

R v B [2003] QCA 105; CA No 336 of 2002, 14 March 2003, applied
R v M [2001] QCA 458; CA No 126 of 2001, 26 October 2001, distinguished
R v Sakail [1993] 1 QdR 312, applied

R v W; ex parte Attorney-General (Qld) [2002] QCA 329; CA No 84 of 2002, 30 August 2002, distinguished

COUNSEL:

M J Byrne QC for the appellant
R G Martin for the respondent

SOLICITORS:

Arnell & Cooper for the appellant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: The appellant pleaded not guilty to two counts of indecent treatment of a girl under 16 years with a circumstance of aggravation and five counts of rape contained in a single indictment. The offences were alleged to have occurred over a period of about six and a half years from July 1982 to December 1988. The indictment originally charged nine counts, but the original counts 1 and 8 were removed and the various counts renumbered accordingly. During the course of the trial, the Crown entered a nolle prosequi in respect of count 5, a count of rape, and a directed verdict of not guilty was entered in respect of count 4, a count of indecent dealing with a girl under 16 years with a circumstance of aggravation, because the complainant's evidence did not establish that those offences occurred during the period alleged in the indictment. The jury convicted the appellant of the remaining count of indecent treatment of a girl under 16 years with a circumstance of aggravation and four counts of rape. The appellant contends the convictions are unsafe and unsatisfactory and against the weight of the evidence.

The appellant was…

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 150
Case: [2003] QCA 150
Decision Date: 4 April 2003

CaseChat Overview and Summary

In the matter of R v D, the appellant was convicted and sentenced in the County Court of Victoria for multiple counts of sexual offences, including rape and indecent dealing. The appellant was sentenced to a total of nine years imprisonment, consisting of seven years for four counts of rape and two years concurrent imprisonment for one count of indecent dealing. The appellant appealed against both the conviction and sentence, arguing that the sentence was manifestly excessive and that the convictions were unsafe and unsatisfactory.

The primary legal issues before the court were whether the sentence was manifestly excessive and whether the evidence was sufficient for the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences. The court considered the seriousness of the offences, the appellant's criminal history, and the need for deterrence and denunciation in determining whether the sentence was manifestly excessive. The court also examined the uncorroborated evidence of the complainant and the time that had elapsed since the offences were committed in assessing the safety and satisfaction of the convictions.

The court found that the sentence was not manifestly excessive, taking into account the gravity of the offences and the need for general and specific deterrence. The court also found that the evidence was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences. The court rejected the argument that the age of the offences and the lack of corroboration rendered the convictions unsafe and unsatisfactory. The appeal against conviction was dismissed, and the application for leave to appeal against sentence was refused.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence 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.

CITATION:	R v D [2003] QCA 150
PARTIES:	R v D (appellant)
FILE NO/S:	CA No 338 of 2002 DC No 70 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Kingaroy
DELIVERED ON:	4 April 2003
DELIVERED AT:	Brisbane
HEARING DATE:	28 February 2003
JUDGES:	McMurdo P, Davies JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE - where appellant sentenced to seven years imprisonment for four counts of rape and two years concurrent imprisonment for one count of indecent dealing - whether sentence manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – UNREASONABLE OR INSUPPORTABLE VERDICT - where appellant convicted of rape and indecent dealing - where counts spanned a period of six years and were nearly 20 years old - where complainant’s evidence was uncorroborated on all counts - whether evidence was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty - whether convictions were unsafe and unsatisfactory and against the weight of the evidence R v B [2003] QCA 105; CA No 336 of 2002, 14 March 2003, applied R v M [2001] QCA 458; CA No 126 of 2001, 26 October 2001, distinguished R v Sakail [1993] 1 QdR 312, applied R v W; ex parte Attorney-General (Qld) [2002] QCA 329; CA No 84 of 2002, 30 August 2002, distinguished
COUNSEL:	M J Byrne QC for the appellant R G Martin for the respondent
SOLICITORS:	Arnell & Cooper for the appellant Director of Public Prosecutions (Queensland) for the respondent