SUPREME COURT OF QUEENSLAND
CITATION:
R v G; ex parte A-G (Qld) (No 2) [2003] QCA 527
PARTIES:
R
v
G
(applicant)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(respondent)FILE NO/S:
CA No 91 of 2003
DC No 258 of 2002
DC No 383 of 2002DIVISION:
Court of Appeal
PROCEEDING:
Application for Reopening (criminal)
ORIGINATING COURT:
District Court at Southport
DELIVERED ON:
28 November 2003
DELIVERED AT:
Brisbane
HEARING DATE:
20 November 2003
JUDGES:
Davies and Williams JJA and Wilson J
Judgment of the CourtORDERS:
Re-open the sentence imposed by the Court of Appeal on 31 October 2003 in CA No 91 of 2003 and set aside the sentence on count 3 of nine years imprisonment with a declaration that the conviction was for a serious violent offence (i)
On count 3, sexual assault with a circumstance of aggravation, sentence the applicant to eight years imprisonment with a declaration that the conviction was for a serious violent offence(ii)
Otherwise all orders and sentences to stand(iii)
CATCHWORDS:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – FACTUAL BASIS FOR SENTENCE – PROOF AND EVIDENCE – PRE-SENTENCE REPORTS AND POLICE REPORTS – where applicant convicted of sexual and assault offences – where sentenced on appeal to nine years imprisonment with a serious violent offence declaration – where sentenced on basis that applicant was subject to a domestic violence order at time of commission of the offences – where that was incorrect – where counsel relied on incorrect information supplied by police – whether sentence imposed should be reduced – whether serious violent offence declaration should be removed
Penalties and Sentences Act 1992 (Qld), s 188
R v G; ex parte A-G (Qld) [2003] QCA 470; CA Nos 76 and 91 of 2003, 31 October 2003, discussed
COUNSEL:
M J Byrne QC for the applicant
M J Copley for the respondentSOLICITORS:
Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent
THE COURT: This is an application brought pursuant to s 188 of the Penalties and Sentences Act 1992 for the re-opening of a sentence imposed by the Court of Appeal on 31 October 2003 on the ground that the sentence was based on a “clear factual error of substance”.
After a trial in the District Court at Southport the applicant was convicted of one count of assault occasioning bodily harm, one count of deprivation of liberty, two counts of sexual assault with a circumstance of aggravation, one count of sexual assault, and one count of attempted rape. The victim in each case was the applicant’s de facto spouse, and the offences were committed on 10 October 2000.
On sentence counsel for the prosecution informed the court that as at 10 October 2000 the applicant was subject to a Domestic Violence Order made in favour of his de facto spouse. In so informing the court the prosecutor was relying on information provided…
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- AGLC
- R v G; ex parte (No 2) [2003] QCA 527
- Case
- [2003] QCA 527
- Decision Date
CaseChat Overview and Summary
The court considered the legal arguments presented by the appellant's legal team and examined the evidence presented in the pre-sentence report and police reports. The court noted that the incorrect information provided by the police had led to an inappropriate sentence being imposed, and that this warranted a reconsideration of the sentence. The court also considered the principles of sentencing and the need to ensure that sentences are proportionate to the offence committed. Ultimately, the court found that the sentence imposed by the Court of Appeal was excessive and that the serious violent offence declaration should be removed. The court found that the appropriate sentence for the appellant on count 3, sexual assault with a circumstance of aggravation, was eight years imprisonment with a declaration that the conviction was for a serious violent offence.
The court ordered that the sentence imposed by the Court of Appeal on 31 October 2003 in CA No 91 of 2003 be re-opened and set aside, and that on count 3, the appellant be sentenced to eight years imprisonment with a declaration that the conviction was for a serious violent offence. The court also ordered that all other orders and sentences remain in place. The court's decision provides guidance on the importance of accurate information in the sentencing process and the need to ensure that sentences are proportionate to the offence committed.
Orders
Orders of the court
Re-open the sentence imposed by the Court of Appeal on 31 October 2003 in CA No 91 of 2003 and set aside the sentence on count 3 of nine years imprisonment with a declaration that the conviction was for a serious violent offence (i)
On count 3, sexual assault with a circumstance of aggravation, sentence the applicant to eight years imprisonment with a declaration that the conviction was for a serious violent offence(ii)
Otherwise all orders and sentences to stand(iii)
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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