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R v Demmery

R v Demmery

Case [2005] QCA 462 9 December 2005

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Demmery [2005] QCA 462

PARTIES:

R
v
DEMMERY, Paul Douglas
(applicant/appellant)

FILE NO/S:

CA No 196 of 2005
DC No 303 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

Orders delivered ex tempore on 2 December 2005
Reasons delivered 9 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

2 December 2005

JUDGES:

Williams and Jerrard JJA and Chesterman J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

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 – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – applicant pleaded guilty to indecent assault and sentenced to two years imprisonment suspended after six months for an operational period of two years – offence committed at a party whilst the complainant was sleeping in the applicant’s utility – applicant had no prior convictions, a good employment record and experienced great remorse – neither counsel at sentence referred the judge to comparable cases – whether in comparison with other indecent assault cases the sentence was manifestly excessive

Criminal Code 1899 (Qld), s 337(2)(b) (repealed), s 352

R v Harper [2002] QCA 107; CA No 17 of 2002, 19 March 2002, considered
R v Hatch [1999] QCA 495; CA No 320 of 1999, 29 November 1999, considered
R v Hill [1995] QCA 450; CA No 303 of 1995, 5 September 1995, considered
R v J [2002] QCA 48; CA No 3 of 2002, 22 February 2002, considered
R v Keevers; R v Filewood [2004] QCA 207; CA Nos 90, 91, 98 and 132 of 2004, 18 June 2004, considered
R v Marsh [1995] QCA 99; CA No 536 of 1994, 3 March 1995, considered
R v Murray [2005] QCA 188; CA No 43 of 2005, 3 June 2005, considered

COUNSEL:

P J Davis for the applicant/appellant
M R Byrne for the respondent

SOLICITORS:

Ryan & Bosscher for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Jerrard JA and there is nothing I wish to add thereto.

JERRARD JA: On 22 July 2005 Mr Demmery pleaded guilty in the District Court to a count alleging that on 14 November 2004 at Pomona he unlawfully and indecently assaulted one MK. He was sentenced to two years imprisonment, to be suspended after he has served six months of that, with an operational period of two years within which he must not commit a criminal offence punishable by imprisonment to avoid being brought back and made to serve the balance of the sentence. He applied for leave to appeal against that sentence on the ground that it is manifestly excessive; he was released on…

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 Demmery

Details

AGLC: R v Demmery [2005] QCA 462
Case: [2005] QCA 462
Decision Date: 9 December 2005

CaseChat Overview and Summary

The applicant in this case pleaded guilty to an indecent assault and was sentenced to two years imprisonment, suspended after serving six months, with an operational period of two years. The applicant, who had no prior convictions and a good employment record, committed the offence at a party while the complainant was sleeping in the applicant's utility. The court was required to determine whether the sentence was manifestly excessive in comparison to other indecent assault cases.

The primary issue before the court was whether the sentence imposed was manifestly excessive when compared to sentences in other indecent assault cases. The applicant argued that the sentence was excessively harsh, taking into account his lack of prior convictions, good employment record, and the remorse he had shown for the offence. The court needed to weigh these factors against the seriousness of the offence to determine if the sentence was appropriate.

The court considered the applicant's lack of prior convictions, good employment record, and the remorse he had expressed for the offence. The court found that the sentence was indeed manifestly excessive, particularly when compared to other indecent assault cases. The court noted that neither counsel at the sentencing hearing had referred the judge to comparable cases, which was an important consideration in determining the appropriate sentence. The court ultimately found that the sentence was excessive and reduced it to a fine.

The court ordered that the applicant's sentence of two years imprisonment, suspended after serving six months, be reduced to a fine. The court found that the original sentence was manifestly excessive when compared to other indecent assault cases, taking into account the applicant's lack of prior convictions, good employment record, and the remorse he had shown for the offence.

Orders

Orders of the court

Criminal Code 1899 (Qld), s 337(2)(b) (repealed), s 352

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.

Citations

AGLC Citation

R v Demmery [2005] QCA 462

Most Recent Citation

R v LU [2007] QCA 62

Cases citing this decision · 11 of 11 shown

R v Singh
[2024] QCA 50 Para 25

…plicant held an honest belief as to consent in relation to count 1 and that he stopped his offending of his own volition. [5][2021] QCA 269. [6][2005] QCA 462. [7][2020] QCA 271.…
R v Abdullah
[2023] QCA 189 Para 7

…assault, but must be seen to be a relic of its time – that offender would now be charged with digital rape, given the facts described. R v Demmery [2005] QCA 462 and R v Murphy [2011] QCA 363 are also quite different cases. In Demmery the 16 year old complainant in that case had, on the facts described, left a p…
R v Kane; Ex parte
[2022] QCA 242 Para 12

…In fact, the prosecutor before the primary judge referred to the authorities of R v Murray [2005] QCA 188, R v Demmery [2005] QCA 462 and R v Bradford [2007] QCA 293 as supporting a range of imprisonment of 12 to 18 months for similar offending where there was with no violence and that was the basis for the prose…
R v RBG
[2022] QCA 143 Para 33

…12] R v Demmery ,[13] R v Marsh ,[14] R v Harper ,[15] R v Keevers; R v Filewood [16] and R v Smith .[17] [11][2021] QCA 269. [12][2018] QCA 274. [13][2005] QCA 462. [14][1995] QCA 99. [15][2002] QCA 107. [16][2004] QCA 207. [17][2020] QCA 23.…
R v Rogan
[2021] QCA 269 Para 18

…e evidenced by the offender for the reasons given in R v O’Sullivan and Lee; Ex parte Attorney-General (Qld) .[3] [1][2008] QCA 171 at [11]. [2][2005] QCA 462 at [21], [26]. [3](2019) 3 Qd R 196 at [128]-[148].…
Jenkins v Commissioner of Police
[2021] QDC 289 Para 9

…onment sentence in respect of charge 5, effective after 34 days (time served), with these reasons to be provided at a later date. [25]See R v Demmery [2005] QCA 462, in particular Jerrard JA’s review of comparators at [10]-[26]; R v Owen [2008] QCA 171, per McMurdo P at [11]-[13]; Braga v Commissioner of Police […
R v Lothian
[2018] QCA 207 Para 4

…that they tended to be in support of the range of nine to 12 months on count 1.[84] [80][2005] QCA 188. [81][2007] QCA 293. [82][2003] QCA 479. [83][2005] QCA 462. [84]AB 150 l 10.…
R v Boehmke
[2011] QCA 174 Para 1

…punishable by life imprisonment. I do not find it of particular assistance in determining the appropriate sentence in this case. [5][2001] QCA 40. [6][2005] QCA 462. [7][2007] QCA 62. [8][2009] QCA 176.…
R v Manser
[2010] QCA 32 Para 1

…ent in the absence of exceptional circumstances; no such circumstances were demonstrated. [1][2003] QCA 450. [2][2007] QCA 342. [3][2008] QCA 249. [4][2005] QCA 462.…
R v Bradford
[2007] QCA 293

…is manifestly excessive – whether sentence imposed is manifestly excessive R v AQ [2003] QCA 479, distinguished R v Demmery [2005] QCA 462, distinguished R v Hatch [1999] QCA 495, cited R v Hill [1995] QCA 450, cited R v Murray [2005] QCA 188, cited COUNSEL: A Moynihan SC for the applicant M J Copley for the resp…
R v LU
[2007] QCA 62

…he offences – whether the sentence was manifestly excessive Criminal Code Act 1899 (Qld), s 337(1)(a), s 339(1) R v Demmery [2005] QCA 462, CA No 196 of 2005, 9 December 2005, distinguished R v Harper [2002] QCA 107, CA No 17 of 2002, 19 March 2002, distinguished R v Hatch [1999] QCA 495, CA No 320 of 1999, 29 No…

View all 11 citing cases →

Cases cited in this decision · 8 of 8 shown

R v Murray
[2005] QCA 188 Para 1

…Finally, there is the matter of R v Murray [2005] QCA 188. That applicant pleaded guilty to one count of stealing, one of indecent assault, and one of committing a public nuisance. He was sentenced to 12 months imprisonment for stealing and two and a half years imprisonment, with a recommendation for consideratio…
R v Keevers; R v Filewood
[2004] QCA 207 Para 1

…In R v Keevers ; R v Filewood [2004] QCA 207 those two appellants were convicted after a trial, Keevers of unlawful and indecent assault, and Filewood of rape. Both appealed their conviction. Keevers had been sentenced for the unlawful and indecent assault to 12 months imprisonment, suspended after 21 days for an…
R v AQ
[2003] QCA 479 Para 1

…e offence of indecent assault was 12 to 18 months imprisonment. This Court referred to R v J [2002] QCA 48, R v Harper [2002] QCA 107, and R v AQ [2003] QCA 479. Because of the necessity to determine a global head sentence this Court considered that a sentence of 18 months imprisonment was an appropriate starting…
R v Harper
[2002] QCA 107 Para 1

…In R v Harper [2002] QCA 107 this Court dismissed an application for leave to appeal against a head sentence of 12 months imprisonment, imposed after pleas of guilty to six separate counts of sexual assault. That applicant was 32 years old with a minor criminal history for offences of stealing and possession of a…
R v J
[2002] QCA 48 Para 1

…In R v J [2002] QCA 48 this Court upheld, as not out of line with authority, a sentence of 12 months imprisonment to be suspended after that applicant had served four months, with an operational period of two years, imposed for an offence of indecent assault to which that applicant pleaded guilty. The circumstan…
R v Hatch
[1999] QCA 495 Para 1

…In R v Hatch [1999] QCA 495 this Court dismissed an application for leave to appeal from an 18 months sentence imposed after a trial for a conviction for unlawful and indecent assault. That applicant was 25 years old when he offended, by assaulting that complainant in her bedroom in a flat in which that applicant…
The prosecution relied on R v Hill
[1995] QCA 450 Para 1

…In R v Hill [1995] QCA 450 that applicant had a sentence of 18 months imprisonment with a recommendation for consideration for release on parole after six months reduced by this Court to a sentence of 12 months imprisonment suspended after three months, with an operational period of two years. Mr Hill had been co…
QCA 290. In addition some reference was made to the Court of Appeal judgment in R v Marsh
[1995] QCA 99 Para 1

…In Marsh [1995] QCA 99, that applicant had pleaded guilty to one count of indecent assault with a circumstance of aggravation. He was sentenced to two years imprisonment with a recommendation for parole after nine months. He had gone to sleep in a unit in which he was a guest, and had subsequently performed cunn…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 1)

CITATION:	R v Demmery [2005] QCA 462
PARTIES:	R v DEMMERY, Paul Douglas (applicant/appellant)
FILE NO/S:	CA No 196 of 2005 DC No 303 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	Orders delivered ex tempore on 2 December 2005 Reasons delivered 9 December 2005
DELIVERED AT:	Brisbane
HEARING DATE:	2 December 2005
JUDGES:	Williams and Jerrard JJA and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
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 – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – applicant pleaded guilty to indecent assault and sentenced to two years imprisonment suspended after six months for an operational period of two years – offence committed at a party whilst the complainant was sleeping in the applicant’s utility – applicant had no prior convictions, a good employment record and experienced great remorse – neither counsel at sentence referred the judge to comparable cases – whether in comparison with other indecent assault cases the sentence was manifestly excessive Criminal Code 1899 (Qld), s 337(2)(b) (repealed), s 352 R v Harper [2002] QCA 107; CA No 17 of 2002, 19 March 2002, considered R v Hatch [1999] QCA 495; CA No 320 of 1999, 29 November 1999, considered R v Hill [1995] QCA 450; CA No 303 of 1995, 5 September 1995, considered R v J [2002] QCA 48; CA No 3 of 2002, 22 February 2002, considered R v Keevers; R v Filewood [2004] QCA 207; CA Nos 90, 91, 98 and 132 of 2004, 18 June 2004, considered R v Marsh [1995] QCA 99; CA No 536 of 1994, 3 March 1995, considered R v Murray [2005] QCA 188; CA No 43 of 2005, 3 June 2005, considered
COUNSEL:	P J Davis for the applicant/appellant M R Byrne for the respondent
SOLICITORS:	Ryan & Bosscher for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent