R v Dam - [2005] QCA 364

SUPREME COURT OF QUEENSLAND

CITATION:

R v DAM [2005] QCA 364

PARTIES:

R
v
DAM
(applicant)

FILE NO/S:

CA No 189 of 2005
DC No 2648 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court

DELIVERED ON:

30 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

26 August 2005

JUDGES:

McMurdo P, Jerrard JA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - applicant convicted after plea of guilty to ex officio indictment containing one count of indecent dealing with a child under 16 who is a lineal descendant - sentenced to three months imprisonment to be followed by 18 months probation - complainant applicant's daughter - isolated incident - full admissions voluntarily given to police - 42 years old at sentence - no criminal history - genuine remorse shown - co-operation with Salvation Army counselling service to complete a risk assessment - indicated willingness to participate in a sex offender treatment programme - whether sentencing judge acted on a wrong principle by imposing a custodial sentence - whether sentence manifestly excessive

R v H; ex parte A-G (Qld) [2001] QCA 262; CA No 57 of 2001, 9 July 2001, cited

R v Jackson; ex parte A-G (Qld) [2001] QCA 445; CA No 206 of 2001, 16 October 2001, cited
R v T [2000] QCA 282; (2000) 113 A Crim R 439, cited

COUNSEL:

A W Moynihan for applicant
M J Copley for respondent

SOLICITORS:

Legal Aid Queensland for applicant
Director of Public Prosecutions (Queensland) for respondent

McMURDO P: The applicant pleaded guilty in the District Court to one count of indecent dealing with a child under 16 who is a lineal descendant. He was sentenced to three months imprisonment to be followed by 18 months probation. He applies for leave to appeal against his sentence contending both that the sentencing discretion miscarried because the judge acted on a wrong principle and that the sentence is manifestly excessive.

The applicant was 42 years old when he offended and has no prior criminal history. He pleaded guilty to an ex officio indictment. The circumstances of his offending were as follows. On one occasion between April and October 2001 he massaged his 12 year old natural daughter after a ballet lesson. As she lay on her stomach he inappropriately massaged her bottom, vagina and breasts under her clothes for about two minutes.

The complainant, who was 14 years old at sentence, was interviewed by police on 9 December 2004. Her version of events did not disclose the commission of any offence. A few days later the applicant voluntarily attended the…

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 Dam

Details

AGLC: R v Dam [2005] QCA 364
Case: [2005] QCA 364
Decision Date: 30 September 2005

CaseChat Overview and Summary

The applicant, a 42-year-old man with no criminal history, appealed against his sentence following a guilty plea to a count of indecent dealing with a child under 16 who is a lineal descendant. The victim was the applicant's daughter. The sentence imposed was three months imprisonment followed by 18 months probation. The applicant voluntarily made full admissions to the police, expressed genuine remorse, and cooperated with a counselling service and a sex offender treatment programme. The legal issues in the appeal were whether the sentencing judge acted on a wrong principle by imposing a custodial sentence and whether the sentence was manifestly excessive.

The court examined the principles established in relevant case law, including R v H; ex parte A-G (Qld), R v Jackson; ex parte A-G (Qld), and R v T. The court considered the factors that the sentencing judge should have taken into account, including the seriousness of the offence, the applicant's age, his criminal history, his voluntary admissions, his cooperation with the counselling service, and his willingness to participate in a treatment programme. The court concluded that the sentencing judge did not act on a wrong principle and that the sentence was not manifestly excessive. The court found that the seriousness of the offence warranted a custodial sentence, and the other factors did not sufficiently mitigate the need for a custodial term.

The applicant's application for leave to appeal against sentence was refused. The court determined that the appeal did not raise a substantial miscarriage of justice and that the sentence imposed was appropriate given the circumstances of the case. The court did not consider it necessary to interfere with the sentence imposed by the trial judge.

Orders

Orders of the court

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 DAM [2005] QCA 364
PARTIES:	R v DAM (applicant)
FILE NO/S:	CA No 189 of 2005 DC No 2648 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court
DELIVERED ON:	30 September 2005
DELIVERED AT:	Brisbane
HEARING DATE:	26 August 2005
JUDGES:	McMurdo P, Jerrard JA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - applicant convicted after plea of guilty to ex officio indictment containing one count of indecent dealing with a child under 16 who is a lineal descendant - sentenced to three months imprisonment to be followed by 18 months probation - complainant applicant's daughter - isolated incident - full admissions voluntarily given to police - 42 years old at sentence - no criminal history - genuine remorse shown - co-operation with Salvation Army counselling service to complete a risk assessment - indicated willingness to participate in a sex offender treatment programme - whether sentencing judge acted on a wrong principle by imposing a custodial sentence - whether sentence manifestly excessive R v H; ex parte A-G (Qld) [2001] QCA 262; CA No 57 of 2001, 9 July 2001, cited R v Jackson; ex parte A-G (Qld) [2001] QCA 445; CA No 206 of 2001, 16 October 2001, cited R v T [2000] QCA 282; (2000) 113 A Crim R 439, cited
COUNSEL:	A W Moynihan for applicant M J Copley for respondent
SOLICITORS:	Legal Aid Queensland for applicant Director of Public Prosecutions (Queensland) for respondent