R v DBF (No 3) - [2013] QCA 382

SUPREME COURT OF QUEENSLAND

CITATION:

R v DBF (No 3) [2013] QCA 382

PARTIES:

R
v
DBF
(applicant)

FILE NO/S:

CA No 219 of 2013
CA No 333 of 2012
DC No 135 of 2012
DC No 286 of 2012
DC No 349 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)
Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

17 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

5 December 2013

JUDGES:

Holmes and Fraser and Gotterson JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The application for an extension of time within which to appeal against conviction is refused.

2. The application for leave to appeal against sentence is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the applicant was convicted after trials of serious sexual offences against his two older daughters and, after pleading guilty, of similar counts involving his youngest daughter – where the applicant had unsuccessfully appealed his convictions on the offences committed against the older daughters – where the applicant applied for an extension of time within which to appeal his conviction on the indictment concerning the youngest daughter – where the application was made over 12 months after conviction – where the applicant deposed that he chose to plead guilty to spare the complainant the ordeal of cross-examination – where the applicant contended that he was wrongly convicted because the locations particularised in the indictment as being where the offences took place were incorrect, there was no medical evidence to support the complainant's allegations, and others might have been responsible for the child’s abuse – whether there was a sufficient explanation for the delay in his application – whether the proposed appeal had any prospects of success – whether any miscarriage of justice occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after separate trials of serious sexual offences against his older daughters and, after pleading guilty, of similar counts involving his youngest daughter – where the offences involved three counts of maintaining a sexual relationship, seven counts of indecent treatment with the aggravating feature that the complainants were his lineal descendants, five counts of rape and one count of deprivation of the youngest daughter’s liberty – where the applicant was given a head sentence of 17 years in respect of the count of maintaining an unlawful sexual relationship with the youngest daughter, with an automatic serious violent offence declaration, and lesser sentences on the remaining charges – where the sole ground of appeal was that the sentences were manifestly excessive – where the offences involved a variety of forms of sexual abuse committed over a 13 year period – where the youngest daughter suffered from serious physical and intellectual…

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 DBF (No 3)

Details

AGLC: R v DBF (No 3) [2013] QCA 382
Case: [2013] QCA 382
Decision Date: 17 December 2013

CaseChat Overview and Summary

The appellant, DBF, was convicted after separate trials for serious sexual offences against his two older daughters and subsequently pleaded guilty to similar charges involving his youngest daughter. He appealed against his convictions for the offences against the older daughters but subsequently sought an extension of time to appeal his conviction on the indictment concerning the youngest daughter, made over 12 months after the conviction. DBF claimed he pleaded guilty to avoid subjecting the youngest daughter to the ordeal of cross-examination and argued that he was wrongly convicted due to incorrect locations in the indictment, lack of medical evidence, and potential involvement of others in the abuse. The court had to determine whether there was a sufficient explanation for the delay in the appeal application and whether the proposed appeal had any prospects of success or if any miscarriage of justice occurred.

The court examined the reasons for the delay in DBF's application for an extension of time to appeal. It found that DBF's explanation did not sufficiently justify the delay. The court further assessed whether the proposed appeal had any prospects of success. It concluded that DBF's contentions did not provide a strong basis for overturning the conviction. Regarding the appeal against sentence, the court considered whether the sentences were manifestly excessive. Given the variety of forms of sexual abuse over 13 years and the youngest daughter's serious physical and intellectual disabilities, the court found that the sentences appropriately reflected the gravity of the offences and the overall criminality of DBF's conduct.

The court ruled that the application for an extension of time within which to appeal against conviction was refused. The application for leave to appeal against sentence was also refused. The reasoning was based on the insufficient justification for the delay in the appeal application, the lack of strong prospects of success for the proposed appeal, and the appropriateness of the sentences given the circumstances of the case.

Orders

Orders of the court

1. The application for an extension of time within which to appeal against conviction is refused.

2. The application for leave to appeal against sentence is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v DBF (No 3) [2013] QCA 382
PARTIES:	R v DBF (applicant)
FILE NO/S:	CA No 219 of 2013 CA No 333 of 2012 DC No 135 of 2012 DC No 286 of 2012 DC No 349 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction) Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	17 December 2013
DELIVERED AT:	Brisbane
HEARING DATE:	5 December 2013
JUDGES:	Holmes and Fraser and Gotterson JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for an extension of time within which to appeal against conviction is refused. 2. The application for leave to appeal against sentence is refused.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the applicant was convicted after trials of serious sexual offences against his two older daughters and, after pleading guilty, of similar counts involving his youngest daughter – where the applicant had unsuccessfully appealed his convictions on the offences committed against the older daughters – where the applicant applied for an extension of time within which to appeal his conviction on the indictment concerning the youngest daughter – where the application was made over 12 months after conviction – where the applicant deposed that he chose to plead guilty to spare the complainant the ordeal of cross-examination – where the applicant contended that he was wrongly convicted because the locations particularised in the indictment as being where the offences took place were incorrect, there was no medical evidence to support the complainant's allegations, and others might have been responsible for the child’s abuse – whether there was a sufficient explanation for the delay in his application – whether the proposed appeal had any prospects of success – whether any miscarriage of justice occurred CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after separate trials of serious sexual offences against his older daughters and, after pleading guilty, of similar counts involving his youngest daughter – where the offences involved three counts of maintaining a sexual relationship, seven counts of indecent treatment with the aggravating feature that the complainants were his lineal descendants, five counts of rape and one count of deprivation of the youngest daughter’s liberty – where the applicant was given a head sentence of 17 years in respect of the count of maintaining an unlawful sexual relationship with the youngest daughter, with an automatic serious violent offence declaration, and lesser sentences on the remaining charges – where the sole ground of appeal was that the sentences were manifestly excessive – where the offences involved a variety of forms of sexual abuse committed over a 13 year period – where the youngest daughter suffered from serious physical and intellectual…