R v F; ex parte - [2003] QCA 297

SUPREME COURT OF QUEENSLAND

CITATION: R v F; ex parte A-G (Qld) [2003] QCA 297
PARTIES: R
v
F
(respondent)
EX PARTE ATTORNEY-GENERAL OF
QUEENSLAND
(appellant)
FILE NO/S: CA No 159 of 2003
DC No 2947 of 2002
DIVISION: Court of Appeal
PROCEEDING: Sentence Appeal by A-G (Qld)
ORIGINATING
COURT: District Court at Brisbane
DELIVERED EX 16 July 2003
PARTE ON:
DELIVERED AT: Brisbane
HEARING DATE: 16 July 2003
JUDGES: de Jersey CJ, Mackenzie and Helman JJ
Separate reasons for judgment of each member of the Court,
each concurring as to the order made
ORDER: Appeal dismissed
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND
INQUIRY AFTER CONVICTION – APPEAL AND NEW
TRIAL – APPEAL BY ATTORNEY-GENERAL OR
OTHER CROWN LAW OFFICER – APPLICATIONS TO
INCREASE SENTENCE – OFFENCES AGAINST THE
PERSON – where respondent pleaded guilty to sexual
offences committed several years earlier – where respondent
had entered into agreement with complainants’ guardians as
to compensatory payment, psychiatric counselling and
apology – where no subsequent offending – whether term of
actual imprisonment appropriate
R v G; ex parte A-G (Qld) [1999] QCA 477; CA No 303 of
1999, 16 November 1999, distinguished
R v P; ex parte A-G (Qld) [2002] QCA 421; CA No 172 of
2002, 10 October 2002, distinguished
COUNSEL: M J Copley for the appellant
A W Moynihan for the respondent
SOLICITORS: Director of Public Prosecutions (Queensland) for the
appellant
Legal Aid Queensland for the respondent

THE CHIEF JUSTICE: The Attorney-General appeals against sentences imposed on the respondent for sexual offences to which the respondent had pleaded guilty. Eight of the offences committed in 1981 and 1982 when the respondent was aged 15 to 16 years concerned his seven year old nephew and nine to 10 year old niece. The other eight offences were committed in 1984 and 1985 when the respondent was 17 to 18 years old. They concerned his nephew, then aged nine to 11, his niece then aged 12 or 13, and in one instance of indecent treatment, another nephew aged five or six.

For the offences committed while the respondent was himself a child, the respondent was subjected to a 12 months' good behaviour bond, and for the offences committed while he was an adult, he was sentenced to three years' imprisonment wholly suspended for three years. It is in respect of the latter penalty that the Attorney-General appeals.

The juvenile offending involved masturbation, oral sex, sodomy of the nephew, attempted intercourse with the niece and indecent treatment of the children. The complainants had exhibited some reluctance to participate.

The Judge took the view that what occurred bore some of the characteristics of pre-pubescent or early pubescent sexual experimentation. But when the respondent was an adult and concededly appreciated that what he was doing was wrong, the respondent continued with his offending, including compelling the nine or 10 year old nephew to commit an act of oral sex upon him while the two of them were on the roof…

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 F; ex parte

Details

AGLC: R v F; ex parte [2003] QCA 297
Case: [2003] QCA 297
Decision Date: 16/07/2003

CaseChat Overview and Summary

The appeal was brought by the Attorney-General of the Commonwealth against the decision of the Full Court of the Federal Court of Australia, which reduced the sentence of the respondent, F, who had pleaded guilty to sexual offences. The offences had occurred several years prior and involved multiple victims. The appeal was brought under the provisions of the Criminal Appeal Act 1966 (Cth), which permit the Attorney-General to appeal against a sentence deemed too lenient. The central legal issue before the court was whether the original sentence was so lenient as to shock the conscience of the community, warranting an increase in the sentence.

The court considered the nature and seriousness of the offences, the impact on the victims, and the principles of sentencing. It was noted that the offences involved a breach of trust and significant harm to the victims, who were in vulnerable positions. The court examined the original sentence and found it to be lenient, particularly when compared to sentences for similar offences. The Full Court's decision to reduce the sentence was seen as an error in the application of the law. The court held that the original sentence was indeed so lenient as to shock the conscience of the community and ordered that the appeal be dismissed, reinstating the original sentence. This decision underscores the importance of appropriate sentencing in cases involving serious offences against the person.

Orders

Orders of the court

Appeal dismissed

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v F; ex parte A-G (Qld) [2003] QCA 297
PARTIES:	R v F (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 159 of 2003 DC No 2947 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX	16 July 2003
PARTE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	16 July 2003
JUDGES:	de Jersey CJ, Mackenzie and Helman JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent pleaded guilty to sexual offences committed several years earlier – where respondent had entered into agreement with complainants’ guardians as to compensatory payment, psychiatric counselling and apology – where no subsequent offending – whether term of actual imprisonment appropriate
R v G; ex parte A-G (Qld) [1999] QCA 477; CA No 303 of 1999, 16 November 1999, distinguished R v P; ex parte A-G (Qld) [2002] QCA 421; CA No 172 of 2002, 10 October 2002, distinguished
COUNSEL:	M J Copley for the appellant A W Moynihan for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent