R v D

[2003] QCA 88

SUPREME COURT OF QUEENSLAND

CITATION:	R v D [2003] QCA 88
PARTIES:	R v D (applicant)
FILE NO/S:	CA No 444 of 2002 DC No 184 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED EX	4 March 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	4 March 2003
JUDGES:	McMurdo P, Mackenzie and Philippides JJ Separate reasons for judgment for each member of the Court, each concurring as to the orders made
ORDERS:	Application for leave to appeal granted Appeal allowed Order that the sentence of 12 years imprisonment for the offence of rape be overturned and a sentence of 10 years imprisonment imposed in lieu thereof No interference with the sentence for the offence of deprivation of liberty
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AN INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where the applicant was sentenced for rape and deprivation of liberty – where the complainant was a child – where the offences occurred after changes to indecent dealing provisions - whether the sentence imposed was manifestly excessive
COUNSEL:	N V Weston for the applicant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

MACKENZIE J: This is an application for leave to appeal against sentence. The applicant who was about 40 years of age at the time of the offences pleaded guilty to one count of deprivation of liberty and one count of rape. The offences arose out of the same events. The sentencing proceedings were initially adjourned after the applicant had pleaded guilty for the purpose of allowing the preparation of a presentence report which included psychological and psychiatric reports.

After the report was received the applicant was sentenced to three years imprisonment for deprivation of liberty and 12 years imprisonment for rape, those sentences to be served concurrently. 330 days that the applicant had already spent in custody were declared to be time already served.

The applicant had a very lengthy criminal history included offences of dishonesty and violence but no previous convictions for sexual offences. The offending behaviour had begun in 1980 when he was about 19 years of age and had continued fairly consistently over the years. There was also information in the presentence report that suggested that he had a poor response to community service and probation orders although he had completed home detention successfully.

The bases upon which it is said that the sentence was manifestly excessive are that it was not clear that the learned sentencing Judge had taken into account the fact that there had been a plea of guilty to both counts which demonstrated some degree of cooperation with the justice system; it was submitted that there should have been some reduction in sentence for that;…