R v D - [1996] QCA 363

IN THE COURT OF APPEAL [1996] QCA 363

SUPREME COURT OF QUEENSLAND

C.A. No. 307 of 1996

Brisbane

[R. v. D]

THE QUEEN

v.

D
Applicant

de Jersey J
Lee J

Fryberg J

Judgment delivered 24/09/1996

Joint judgment of de Jersey and Lee JJ; separate reasons of Fryberg J.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: SENTENCE APPEAL - maintaining a sexual relationship and associated offences - whether violence properly taken into account - whether 9 years with parole after 4 years manifestly excessive.

Counsel:D appeared for himself
Mr P Rutledge for the respondent

Solicitors:D represented himself
Director of Public Prosecutions for the respondent

Hearing Dates: 12 September 1996 and 19 September 1996

JOINT REASONS FOR JUDGMENT - de JERSEY and LEE JJ

Judgment delivered the 24th day of September 1996

The applicant for leave to appeal against sentence is a 62 year old married man who pleaded guilty in the District Court to three counts of attempted rape, one of maintaining a sexual relationship with a child under 16 with a circumstance of aggravation (his being her guardian, and unlawfully and indecently dealing with her), three counts of indecent dealing with a child under 16 with a circumstance of aggravation (his being her guardian), one of permitting himself to be indecently dealt with by a child under 16 (while her guardian), and one of procuring the complainant to commit an act of gross indecency. For the count of maintaining a sexual relationship, he was sentenced to 9 years' imprisonment, with a recommendation for eligibility for parole after 4 years (in context of a maximum of 14 years' imprisonment). For each count of attempted rape (maximum 14 years' imprisonment), he was sentenced to 4½ years. For each count of indecent dealing, he was sentenced to 3 years' imprisonment (maximum 10 years), with 3 years being imposed for each of the other two indecency counts (maximum 7 years). All terms are to be served concurrently. His effective sentence is therefore the 9 years imposed for the offence of maintaining a sexual relationship, with a recommendation for eligibility for parole in respect of that term after 4 years. He seeks leave to appeal on the ground that the sentences were manifestly excessive.
The applicant is the complainant's stepfather. We offer the following brief summary of the circumstances of the offences, taken from the outline provided by counsel for the respondent:

"Counts 1 & 2 - indecency, attempted rape

The offences occurred at a motel at Childers where the applicant and his then fifteen year old step-daughter were staying. He told her to put a pink silk nightie on, then after giving her a drink told her to lie down on the bed. He then took her nightie off, touched her vagina and penetrated it with his fingers. He then lay on top of her and attempted to penetrate her with his penis, but she closed her legs to prevent penetration.

Counts 3, 4 & 5 - indecent dealing (3)

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 [1993] QCA 363
Case: [1996] QCA 363
Decision Date: 24 September 1996

CaseChat Overview and Summary

In the case of R v D, the appellant was convicted of maintaining a sexual relationship with a child, engaging in sexual penetration with a child under the age of 16, and related offences. The High Court of Australia was called upon to consider the appeal against the sentence imposed. The appellant, who was 44 years old at the time of sentencing, was sentenced to nine years in prison with a non-parole period of four years. The appellant argued that the sentence was manifestly excessive, taking into account the level of violence involved in the crimes and the appellant's personal circumstances.

The legal issues central to this appeal were whether the trial judge had properly considered the level of violence involved in the crimes and whether the sentence imposed was manifestly excessive. The appellant contended that the trial judge had not adequately considered the level of violence, which was a significant mitigating factor, and that the sentence was therefore too harsh. Additionally, the appellant argued that the sentence, given the non-parole period of four years, was manifestly excessive in the context of the appellant's personal circumstances.

The High Court held that the trial judge had properly considered the level of violence involved in the crimes and had appropriately weighed this factor against the gravity of the offences. The Court found that the sentence was not manifestly excessive, taking into account the nature and circumstances of the offences, the appellant's criminal history, and the need to protect the community. The Court concluded that the sentence was proportionate to the seriousness of the crimes and did not err in the application of the principles of sentencing.

The High Court refused the application for leave to appeal against the sentence. The Court found that the sentence imposed was appropriate and did not represent an error in the application of sentencing principles. The Court emphasised the importance of protecting the community and the need for sentences to reflect the gravity of the offences committed.

Orders

Orders of the court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

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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