R v. Deering - [2008] QCA 209

SUPREME COURT OF QUEENSLAND

CITATION:

R v Deering [2008] QCA 209

PARTIES:

R
(respondent)
v
DEERING, Robert Charles
(applicant/appellant)

FILE NO/S:

CA No 127 of 2008
DC No 97 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED EX TEMPORE ON:

29 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2008

JUDGES:

McMurdo P, Mackenzie AJA and Dutney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application for leave to appeal granted;

2.   The sentences of four years imprisonment on each count be set aside and in lieu thereof, sentences of two years imprisonment be imposed;

3.   The sentence be suspended on and from
1 September 2008, with an operational period of two years.

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 GRANTED – GENERALLY – where applicant convicted on pleas of guilty of 12 counts of indecent treatment of a girl under 12 years – where applicant sentenced to four years imprisonment on each count to be served concurrently – where offences occurred between 1966 and 1972 – where, at the time of the offences, the maximum penalty for indecent treatment of a girl under 12 was
five years imprisonment – where the learned sentencing Judge had been misinformed that the maximum penalty was seven years imprisonment – whether the sentence was manifestly excessive

R v Bell [1982] Qd R 216, cited
R v Law; ex parte Attorney-General [1996] 2 Qd R 63;
[1995] QCA 444, cited
R v Pham[1996] QCA 3, cited
R v Quick; ex parte Attorney-General (Qld) [2006] QCA 477, cited

COUNSEL:

C W Heaton for the applicant/appellant
R G Martin SC for the respondent

SOLICITORS:

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

MACKENZIE AJA: This is an application for leave to appeal against concurrent sentences of 4 years imposed on the applicant who is now 75 years old following his pleas of guilty to 12 counts of indecent treatment of a girl under 12 years. The indictment alleged a period of 6 years from October 1966 to October 1972 over which the offences were committed. The girl would have been between 2 and 8 years of age during that period. The applicant would have been 33 to 39 years old then. The Crown Prosecutor said at sentencing that the actual time span for the offences was more likely to be about 4 or 5 years.

At the time of the offending the applicant lived as a family friend and part of the extended family in a caravan at the complainant's grandmother's home which was in the same street where the complainant lived. The complainant went to her grandmother's frequently and went to the caravan often. It was during those…

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. Deering

Details

AGLC: R v Deering [2008] QCA 209
Case: [2008] QCA 209
Decision Date: 29 July 2008

CaseChat Overview and Summary

In the case of R v. Deering, the applicant, who had been convicted on pleas of guilty of 12 counts of indecent treatment of a girl under 12 years, appealed against the severity of his sentence. The applicant had been sentenced to four years imprisonment on each count, to be served concurrently, for offences that occurred between 1966 and 1972. The sentencing Judge was under the impression that the maximum penalty for the crime of indecent treatment of a girl under 12 was seven years imprisonment, however, at the time of the offences, the actual maximum penalty was five years imprisonment. The applicant argued that, given the misinformation provided to the sentencing Judge, the sentence imposed was manifestly excessive.

The legal issues that the court had to resolve were whether the applicant's sentence was manifestly excessive and whether the sentence should be set aside and replaced with a lesser sentence. The court needed to consider the maximum penalty for the crime at the time it was committed, the impact of the misinformation provided to the sentencing Judge, and whether the sentence was excessive given the circumstances of the case. The court also had to consider the appropriate length of a sentence in light of the applicant's guilty pleas, the time that had passed since the offences occurred, and the impact of the offences on the victim.

The court found that the sentence was indeed manifestly excessive and that the sentencing Judge had been misinformed about the maximum penalty for the crime. The court also found that the applicant's guilty pleas and the time that had passed since the offences occurred were mitigating factors that should be taken into account when determining the appropriate length of a sentence. The court set aside the original sentence and imposed a new sentence of two years imprisonment on each count, to be served concurrently. The court also suspended the sentence on and from 1 September 2008, with an operational period of two years. The court granted the applicant's application for leave to appeal and ordered that the sentences of four years imprisonment on each count be set aside and in lieu thereof, sentences of two years imprisonment be imposed. The sentence is to be suspended on and from 1 September 2008, with an operational period of two years.

Orders

Orders of the court

1. Application for leave to appeal granted;

2. The sentences of four years imprisonment on each count be set aside and in lieu thereof, sentences of two years imprisonment be imposed;

3. The sentence be suspended on and from

1 September 2008, with an operational period of two years.

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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CITATION:	R v Deering [2008] QCA 209
PARTIES:	R (respondent) v DEERING, Robert Charles (applicant/appellant)
FILE NO/S:	CA No 127 of 2008 DC No 97 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED EX TEMPORE ON:	29 July 2008
DELIVERED AT:	Brisbane
HEARING DATE:	29 July 2008
JUDGES:	McMurdo P, Mackenzie AJA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal granted; 2. The sentences of four years imprisonment on each count be set aside and in lieu thereof, sentences of two years imprisonment be imposed; 3. The sentence be suspended on and from 1 September 2008, with an operational period of two years.
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 GRANTED – GENERALLY – where applicant convicted on pleas of guilty of 12 counts of indecent treatment of a girl under 12 years – where applicant sentenced to four years imprisonment on each count to be served concurrently – where offences occurred between 1966 and 1972 – where, at the time of the offences, the maximum penalty for indecent treatment of a girl under 12 was five years imprisonment – where the learned sentencing Judge had been misinformed that the maximum penalty was seven years imprisonment – whether the sentence was manifestly excessive R v Bell [1982] Qd R 216, cited R v Law; ex parte Attorney-General [1996] 2 Qd R 63; [1995] QCA 444, cited R v Pham[1996] QCA 3, cited R v Quick; ex parte Attorney-General (Qld) [2006] QCA 477, cited
COUNSEL:	C W Heaton for the applicant/appellant R G Martin SC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent