R v Dutton - [2005] QCA 17

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dutton [2005] QCA 17

PARTIES:

R
v
DUTTON, Damian James

(applicant)

FILE NO/S:

CA No 205 of 2004

DC No 661 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

11 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2005

JUDGES:

McMurdo P, McPherson JA and Jerrard JA

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal against sentence allowed

2. Each of the sentences imposed on counts 5 and 7 in the indictment reduced from three to two and a half years

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE – SENTENCES ON TWO OR MORE COUNTS – cumulative sentences – interpretation of s 161C Penalties and Sentences Act 1992

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – NON-PAROLE PERIOD OR MINIMUM TERM – QUEENSLAND – declaration of a serious violence offence – whether declaration applied to sentences on other counts – whether overall sentence reflected intention of sentencing judge

CRIMINAL LAW – PARTICULAR OFFENCES – OTHER OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – PRACTICE AND PROCEDURE – applicant committed rape on carer in presence of intellectually impaired person – appropriateness of sentence

CRIMINAL LAW – PARTICULAR OFFENCES– OTHER OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – ATTEMPT AND ASSAULT WITH INTENT – SENTENCING – indecent acts in public places – sexual assaults – attempted rape – whether sentence appropriate

Penalties and Sentences Act 1992 (Qld), s 161C

R v Powderham [2002] 2 Qd R 417; [2001] QCA 429, applied

COUNSEL:

The applicant appeared on his own behalf

M J Copley for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: I agree with the orders proposed by McPherson JA and with his reasons.

McPHERSON JA: The applicant pleaded guilty and was sentenced on 16 April 2004 in the District Court to sentences of imprisonment, which in combination totalled 10 years, for one count of sexual assault, one of rape, one of exposing an intellectually impaired person to an indecent act, two counts of indecent acts in a public place, one of attempted rape, one of sexual assault with an aggravating circumstance, one of going armed so as to cause fear, and one of wilful damage. In addition, the sentencing judge activated a prior sentence of imprisonment for 6 months suspended for 3 years on 12 September 2002, which was ordered to be served concurrently.

For count 2 (rape), the sentence was 7 years, with an accompanying declaration that it constituted a serious violent offence; for count 1 (indecent assault), the sentence was two years; on count 3, it was two years for exposing an intellectually impaired person to…

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 Dutton

Details

AGLC: R v Dutton [2005] QCA 17
Case: [2005] QCA 17
Decision Date: 11 February 2005

CaseChat Overview and Summary

The respondent, Dutton, was convicted on a number of counts including rape and indecent acts in public places. The sentences imposed were concurrent and cumulative. Dutton appealed the sentence on the basis that the sentencing judge erred in his interpretation of the Penalties and Sentences Act 1992. The appeal was limited to the sentences imposed on counts 5 and 7. The respondent argued that the sentencing judge was required to impose a non-parole period on those counts that reflected the seriousness of the offences and the need to deter similar conduct. The appeal court was required to determine whether the sentencing judge erred in his interpretation of the Penalties and Sentences Act 1992 and whether the sentences imposed on counts 5 and 7 were appropriate.
The appeal court found that the sentencing judge erred in his interpretation of section 161C of the Penalties and Sentences Act 1992. The court found that the declaration of a serious violence offence applied to the sentences on other counts, not just the count to which the declaration applied. The court also found that the overall sentence did not reflect the intention of the sentencing judge. The appeal court found that the sentences imposed on counts 5 and 7 were manifestly inadequate and did not reflect the seriousness of the offences or the need to deter similar conduct. The appeal court allowed the appeal against sentence and reduced each of the sentences imposed on counts 5 and 7 from three to two and a half years.

Orders

Orders of the court

1. Appeal against sentence allowed

2. Each of the sentences imposed on counts 5 and 7 in the indictment reduced from three to two and a half 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 Dutton [2005] QCA 17
PARTIES:	R v DUTTON, Damian James (applicant)
FILE NO/S:	CA No 205 of 2004 DC No 661 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	11 February 2005
DELIVERED AT:	Brisbane
HEARING DATE:	7 February 2005
JUDGES:	McMurdo P, McPherson JA and Jerrard JA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against sentence allowed 2. Each of the sentences imposed on counts 5 and 7 in the indictment reduced from three to two and a half years
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE – SENTENCES ON TWO OR MORE COUNTS – cumulative sentences – interpretation of s 161C Penalties and Sentences Act 1992 CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – NON-PAROLE PERIOD OR MINIMUM TERM – QUEENSLAND – declaration of a serious violence offence – whether declaration applied to sentences on other counts – whether overall sentence reflected intention of sentencing judge CRIMINAL LAW – PARTICULAR OFFENCES – OTHER OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – PRACTICE AND PROCEDURE – applicant committed rape on carer in presence of intellectually impaired person – appropriateness of sentence CRIMINAL LAW – PARTICULAR OFFENCES– OTHER OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – ATTEMPT AND ASSAULT WITH INTENT – SENTENCING – indecent acts in public places – sexual assaults – attempted rape – whether sentence appropriate Penalties and Sentences Act 1992 (Qld), s 161C R v Powderham [2002] 2 Qd R 417; [2001] QCA 429, applied
COUNSEL:	The applicant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent