R v DAU; Ex parte Attorney-General (Qld) - [2009] QCA 244

SUPREME COURT OF QUEENSLAND

CITATION:

R v DAU; ex parte A-G (Qld) [2009] QCA 244

PARTIES:

R
v
DAU
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 113 of 2009
DC No 15 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

Childrens Court at Brisbane

DELIVERED ON:

28 August 2009

DELIVERED AT:

Brisbane

HEARING DATE:

14 August 2009

JUDGES:

Holmes JA, Mullins and Philippides JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where respondent, a juvenile, pleaded guilty to one count of rape – where respondent sentenced to two years detention, to be released after serving 50 per cent, with no conviction recorded – where respondent younger than complainant – where respondent forced complainant to perform oral sex on him – where respondent struck complainant’s face three times – where respondent 15 years old when offence committed, had no criminal history and had favourable pre-sentence report – whether sentencing judge erred in regarding other comparable cases as more serious – whether sentence manifestly inadequate – whether conviction should be recorded where juvenile commits rape

Juvenile Justice Act 1992 (Qld), s 150, s 176, s 184

R v E; ex parte A-G (Qld) (2002) 134 A Crim R 486; [2002] QCA 417, cited
R v JAJ[2003] QCA 554, cited
R v KU & Ors; ex parte A-G (Qld) [2008] QCA 154, cited
R v PZ; ex parte A-G (Qld) [2005] QCA 459, cited

COUNSEL:

A W Moynihan SC, with L P Brisick, for the appellant
S Hamlyn-Harris for the respondent

SOLICITORS:

Director of Public Prosecutions (Qld) for the appellant
Legal Aid Queensland for the respondent

HOLMES JA: The Attorney-General appeals a sentence imposed on a juvenile for rape. The respondent was 15 years old at the time of the offence, to which he pleaded guilty. He was sentenced to two years detention, to be released after serving 50 per cent of it. No conviction was recorded.

The facts on which the appellant was sentenced

The complainant, at 17 years and ten months, was older than the respondent. According to a schedule of agreed facts put before the learned judge on sentence, she knew the respondent from the country high school they both attended. They encountered each other at a party on 13 June 2008. The two had been talking. They went outside the premises where the party was held and engaged in some consensual kissing; the complainant said she was “very drunk”. She found herself lying on the ground. The respondent pulled her underpants down to her knees, despite her attempt at pulling them back up, and put his fingers inside her vagina. (This event was not the subject of any charge and was put before the court purely by…

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.

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Details

Case: [2009] QCA 244
Decision Date: 28 August 2009

CaseChat Overview and Summary

In the case of R v DAU; Ex parte Attorney-General (Qld), the respondent, a juvenile, appealed against his sentence, arguing that it was manifestly inadequate. The respondent had pleaded guilty to one count of rape, which involved forcing the complainant to perform oral sex and striking her face three times. The sentencing judge imposed a two-year detention sentence, with the respondent to be released after serving 50 per cent of the sentence, and no conviction to be recorded. The respondent was 15 years old at the time of the offence, had no criminal history, and received a favourable pre-sentence report.

The court was required to determine whether the sentencing judge erred in considering other comparable cases as more serious and whether the sentence was manifestly inadequate. Additionally, the court examined whether a conviction should be recorded in cases where a juvenile commits rape. The court examined the circumstances of the offence, the respondent's age, criminal history, and the pre-sentence report. The court also considered the sentencing principles and guidelines applicable to juvenile offenders.

The court held that the sentencing judge did not err in considering other comparable cases as more serious, as the circumstances of those cases were indeed more severe. The court found that the sentence was not manifestly inadequate, as it took into account the respondent's age, criminal history, and pre-sentence report. The court held that recording a conviction in cases where a juvenile commits rape is not mandatory, and the decision not to record a conviction in this case was appropriate. The appeal was dismissed, and the sentence and decision not to record a conviction were upheld.

Orders

Orders of the court

Appeal dismissed

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 DAU; ex parte A-G (Qld) [2009] QCA 244
PARTIES:	R v DAU (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 113 of 2009 DC No 15 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	Childrens Court at Brisbane
DELIVERED ON:	28 August 2009
DELIVERED AT:	Brisbane
HEARING DATE:	14 August 2009
JUDGES:	Holmes JA, Mullins and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where respondent, a juvenile, pleaded guilty to one count of rape – where respondent sentenced to two years detention, to be released after serving 50 per cent, with no conviction recorded – where respondent younger than complainant – where respondent forced complainant to perform oral sex on him – where respondent struck complainant’s face three times – where respondent 15 years old when offence committed, had no criminal history and had favourable pre-sentence report – whether sentencing judge erred in regarding other comparable cases as more serious – whether sentence manifestly inadequate – whether conviction should be recorded where juvenile commits rape Juvenile Justice Act 1992 (Qld), s 150, s 176, s 184 R v E; ex parte A-G (Qld) (2002) 134 A Crim R 486; [2002] QCA 417, cited R v JAJ[2003] QCA 554, cited R v KU & Ors; ex parte A-G (Qld) [2008] QCA 154, cited R v PZ; ex parte A-G (Qld) [2005] QCA 459, cited
COUNSEL:	A W Moynihan SC, with L P Brisick, for the appellant S Hamlyn-Harris for the respondent
SOLICITORS:	Director of Public Prosecutions (Qld) for the appellant Legal Aid Queensland for the respondent