R v Els - [2004] QCA 111

SUPREME COURT OF QUEENSLAND

CITATION:

R v ELS; exparte A-G [2004] QCA 111

PARTIES:

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

FILE NO/S:

CA No 410 of 2003
DC No 301 of 2003
DC No 330 of 2003
DC No 342 of 2003
DC No 343 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Ipswich

DELIVERED EX- TEMPORE ON:

14 April 2004

DELIVERED AT:

Brisbane

HEARING DATE:

14 April 2004

JUDGES:

McMurdo P and Davies and Jerrard JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Allow the appeal

2.   Substitute a term of imprisonment of six years for the four years imprisonment imposed at first instance on the count of incest in Indictment No 301 of 2003

3.   In respect of the offence of assault occasioning bodily harm in Indictment No 343 of 2003 instead of imposing a sentence of three years concurrent imprisonment substitute a sentence of 18 months imprisonment cumulative upon the sentences imposed on the remaining offences

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent convicted after a trial of one count of rape, and on pleas of guilty of one count of incest, one count of sexual assault, one count of assault occasioning bodily harm and one count of breaking, entering and stealing – where sentenced to five years and three months imprisonment on rape and lesser concurrent sentences on the remaining charges – where rape of 15 year old who considered respondent to be her cousin – where incest committed upon 14 year old niece – where assault of de facto partner – where respondent had prior convictions for assaults and breaches of Domestic Violence orders – where respondent breached suspended sentence by commission of the offences – whether sentences manifestly inadequate

COUNSEL:

B G Campbell for the appellant
A J Moynihan for the respondent

SOLICITORS:

Director of Public Prosecutions for the appellant
Legal Aid Queensland for the respondent

THE PRESIDENT: The respondent pleaded not guilty in the Ipswich District Court on 1 December 2003 to one count of rape and three counts of indecent treatment of a child under 16, alleged to have been committed between 31 January and 1 March 2001. He was acquitted of the three counts of indecent treatment but convicted of rape on 2 December 2003. He then pleaded guilty to an assortment of charges contained in a further three indictments: one count of breaking, entering and stealing on 29 December 1993; one count of incest on 19 March 2003; and one count of sexual assault and one count of assault occasioning bodily harm, both committed on 15 April 2003. On 3 December 2003 he was sentenced to five years and…

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 Els

Details

AGLC: R v Els [2004] QCA 111
Case: [2004] QCA 111
Decision Date: 14 April 2004

CaseChat Overview and Summary

In the matter of R v Els, the respondent was convicted following a trial of one count of rape, and pleaded guilty to one count of incest, one count of sexual assault, one count of assault occasioning bodily harm, and one count of breaking, entering, and stealing. Els was sentenced to five years and three months imprisonment for the count of rape, and received lesser concurrent sentences for the remaining charges. The Attorney-General sought to appeal against the sentence, contending that it was manifestly inadequate. The appeal was heard in the Supreme Court of South Australia.

The primary legal issue the Court needed to determine was whether the sentences imposed on the respondent were manifestly inadequate. The Court considered the nature and circumstances of the offences, including the fact that the rape was committed against a fifteen-year-old girl who considered Els to be her cousin. The Court also took into account the incest committed upon the respondent's fourteen-year-old niece, as well as the assault of Els' de facto partner. Additionally, the Court noted Els' prior convictions for assaults and breaches of Domestic Violence orders, as well as the fact that Els had breached a suspended sentence by committing the offences in question. The Court also considered the sentencing principles and the need for deterrence, rehabilitation, and protection of the community.

The Court held that the sentences imposed on the respondent were manifestly inadequate. The Court found that the sentences did not adequately reflect the seriousness of the offences, nor did they provide sufficient deterrence, or address the need for rehabilitation and protection of the community. The Court found that the sentences did not appropriately account for the vulnerable nature of the victims, the gravity of the offences, and the respondent's criminal history. The Court allowed the appeal and substituted a term of imprisonment of six years for the four years imprisonment imposed at first instance on the count of incest. The Court also imposed a sentence of 18 months imprisonment cumulative upon the sentences imposed on the remaining offences for the offence of assault occasioning bodily harm.

Orders

Orders of the court

1. Allow the appeal

2. Substitute a term of imprisonment of six years for the four years imprisonment imposed at first instance on the count of incest in Indictment No 301 of 2003

3. In respect of the offence of assault occasioning bodily harm in Indictment No 343 of 2003 instead of imposing a sentence of three years concurrent imprisonment substitute a sentence of 18 months imprisonment cumulative upon the sentences imposed on the remaining offences

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 ELS; exparte A-G [2004] QCA 111
PARTIES:	R v ELS (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 410 of 2003 DC No 301 of 2003 DC No 330 of 2003 DC No 342 of 2003 DC No 343 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Ipswich
DELIVERED EX- TEMPORE ON:	14 April 2004
DELIVERED AT:	Brisbane
HEARING DATE:	14 April 2004
JUDGES:	McMurdo P and Davies and Jerrard JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Allow the appeal 2. Substitute a term of imprisonment of six years for the four years imprisonment imposed at first instance on the count of incest in Indictment No 301 of 2003 3. In respect of the offence of assault occasioning bodily harm in Indictment No 343 of 2003 instead of imposing a sentence of three years concurrent imprisonment substitute a sentence of 18 months imprisonment cumulative upon the sentences imposed on the remaining offences
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent convicted after a trial of one count of rape, and on pleas of guilty of one count of incest, one count of sexual assault, one count of assault occasioning bodily harm and one count of breaking, entering and stealing – where sentenced to five years and three months imprisonment on rape and lesser concurrent sentences on the remaining charges – where rape of 15 year old who considered respondent to be her cousin – where incest committed upon 14 year old niece – where assault of de facto partner – where respondent had prior convictions for assaults and breaches of Domestic Violence orders – where respondent breached suspended sentence by commission of the offences – whether sentences manifestly inadequate
COUNSEL:	B G Campbell for the appellant A J Moynihan for the respondent
SOLICITORS:	Director of Public Prosecutions for the appellant Legal Aid Queensland for the respondent