Keane and Fraser JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:
Application for leave to appeal against sentence refused
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where the applicant was convicted on his own plea of guilty of one count of rape, three counts of sexual assault whilst armed, and one count of deprivation of liberty – where the applicant was sentenced to a head sentence of 10 and a half years imprisonment – whether the sentence imposed was, in all the circumstances, manifestly excessive
The applicant appeared on his own behalf M B Lehane for the respondent
SOLICITORS:
The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent
KEANE JA: On 7 January 2008 the applicant was convicted upon his own plea of five offences including rape which occurred many years before on 12 July 1997. He was sentenced to 10 and a half years imprisonment for the offence of rape and concurrent terms of three years imprisonment for the other offences. A period of pre-sentence custody of 353 days was declared to be time already served.
The applicant seeks leave to appeal against the sentence for the offence of rape on the ground that it is said to be "manifestly excessive". This application came on for hearing by this Court on 19 June 2008. On that occasion, the applicant sought, and was granted, an adjournment of the hearing in order to enable him to arrange legal representation. When the matter came on for hearing again on 19 September 2008, it was evidently the case that the applicant had not been able to arrange legal representation. He was, therefore, obliged to represent himself.
I will consider the arguments advanced by the applicant in support of his application after first setting out the circumstances of his offending, his personal circumstances and the considerations taken into account by the learned sentencing judge.
The circumstances of the…
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.
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Details
AGLC
R v Flew [2008] QCA 290
Case
[2008] QCA 290
Decision Date
CaseChat Overview and Summary
The case of R v Flew involved the applicant, who had pleaded guilty to multiple serious offences including rape, sexual assault whilst armed, and deprivation of liberty. The court sentenced him to a head sentence of 10 and a half years imprisonment. The applicant appealed against the severity of the sentence, arguing it was manifestly excessive given the circumstances. The appeal focused on whether the sentence was disproportionate to the crimes committed.
The court was required to determine if the sentence imposed was, in all the circumstances, manifestly excessive. This involved a careful consideration of the nature and severity of the offences, the culpability of the applicant, and whether the sentence was consistent with those imposed in similar cases. The court had to weigh the gravity of the crimes against the mitigating factors presented by the applicant.
The court found that the sentence imposed was not manifestly excessive. It carefully considered the evidence and arguments presented, concluding that the sentence was appropriate and proportionate to the crimes committed. The court's reasoning emphasised the severity of the offences and the need for a sentence that reflected the gravity of the applicant's actions. Consequently, the application for leave to appeal against the sentence was refused.
Orders
Orders of the court
Application for leave to appeal against sentence refused