R v DBC; ex parte

Case [2012] QCA 203

SUPREME COURT OF QUEENSLAND

CITATION:

R v DBC; ex parte A-G (Qld) [2012] QCA 203

PARTIES:

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

FILE NO/S:

CA No 46 of 2012
DC No 6 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED ON:

10 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

12 June 2012

JUDGES:

Chief Justice and Holmes and Muir JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – EXERCISE OF DISCRETION – GENERALLY – where the respondent pleaded guilty to one count of maintaining an unlawful sexual relationship, two counts of indecent dealing, and six counts of rape – where the complainant was the respondent’s daughter – where respondent had no criminal history – where respondent’s wife had lengthy battle with cancer – where offending commenced subsequent to her death – where complainant could only particularise two occasions of intercourse – where respondent assisted police by particularising further offending conduct – where respondent pleaded guilty at an early stage – where respondent sentenced to nine years imprisonment for the maintaining offence with fixed parole eligibility after serving three years – where appellant submitted this sentence was manifestly inadequate – where appellant submitted sentencing judge erred in failing to declare the offence a serious violent offence – where appellant submitted sentencing judge gave excessive weight to mitigating features and insufficient weight to the seriousness of the offence, general and personal deterrence, and the protection of the community – whether sentence manifestly inadequate – whether serious violent offence declaration should be made

Criminal Code 1899 (Qld), s 669A

Director of Public Prosecutions (Cth) v Gregory (2011) 250 FLR 169; [2011] VSCA 145, cited
Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, considered
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22, considered
Lacey v Attorney-General of Queensland (2011) 242 CLR 573; [2011] HCA 10, considered
Malvaso v The Queen (1989) 168 CLR 227; [1989] HCA 58, cited
R v C; ex parte A-G(Qld)[2003] QCA 134, distinguished
R v H[2003] QCA 392, considered
R v KAI[2002] QCA 378, considered
R v KU& Ors; ex parte A-G (Qld) (No 2) [2011] 1 Qd R 439; [2008] QCA 154, distinguished
R v Price; ex parte A-G (Qld) [2011] QCA 87, considered
R v SAU[2006] QCA 192, considered
R v SBJ[2009] QCA 100, considered
R v TS [2009] 2 Qd R 276; [2008] QCA 370, distinguished
R v Vincent; ex parte A-G (Qld) [2001] 2 Qd R 327; [2000] QCA 250, considered
R v Wilton (1981) 28 SASR 362, considered

COUNSEL:

A W Moynihan SC for the appellant
J J Allen for the respondent

SOLICITORS:

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Details
AGLC
R v DBC; ex parte [2012] QCA 203
Case
[2012] QCA 203
Decision Date

CaseChat Overview and Summary

In the matter of R v DBC; ex parte, the appellant sought to appeal against the sentence imposed on the respondent, who had pleaded guilty to one count of maintaining an unlawful sexual relationship, two counts of indecent dealing, and six counts of rape, all involving the respondent’s daughter. The High Court of Australia was called upon to determine whether the sentence was manifestly inadequate and whether the sentencing judge had erred in not declaring the offence to be a serious violent offence.

The appellant argued that the sentence of nine years imprisonment for the maintaining offence, with fixed parole eligibility after serving three years, was manifestly inadequate. The appellant further contended that the sentencing judge had erred by not declaring the offence a serious violent offence, by giving excessive weight to mitigating features, and by giving insufficient weight to the seriousness of the offence, general and personal deterrence, and the protection of the community. The central legal issues, therefore, were whether the sentence was manifestly inadequate and whether the sentencing judge should have declared the offence to be a serious violent offence.

The Court considered the mitigating circumstances of the case, including the absence of a criminal history for the respondent and the fact that the offending occurred after the respondent’s wife had passed away from cancer. However, the Court emphasised the gravity of the offences committed, particularly the sexual abuse of a family member. The Court held that the sentence was not manifestly inadequate, as it had taken into account the mitigating factors and the seriousness of the offences. The Court also determined that the sentencing judge had not erred in not declaring the offence to be a serious violent offence, as the nature of the relationship and the specific circumstances did not warrant such a declaration.

The appeal was dismissed, with the Court affirming the sentence imposed by the sentencing judge. The Court held that the sentence was appropriate given the mitigating factors and the seriousness of the offences committed by the respondent.

Orders

Orders of the court

Appeal dismissed

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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