R v G; ex parte (No 2) - [2003] QCA 527

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 2002

DIVISION:

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 Court

ORDERS:

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 respondent

SOLICITORS:

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…

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 G; ex parte (No 2)

Details

AGLC: R v G; ex parte (No 2) [2003] QCA 527
Case: [2003] QCA 527
Decision Date: 28 November 2003

CaseChat Overview and Summary

In the matter of R v G; ex parte, the appellant, who was convicted of various sexual and assault offences, sought to appeal the sentence imposed on him by the Court of Appeal. The sentence was for nine years imprisonment with a declaration that the conviction was for a serious violent offence. The appellant's legal team argued that the sentence should be reduced and the serious violent offence declaration should be removed due to incorrect information provided by the police regarding the existence of a domestic violence order at the time of the offences. The appellant's legal team contended that the incorrect information had led to an inappropriate sentence being imposed, and that this warranted a reconsideration of the sentence. The legal issue before the court was whether the sentence imposed by the Court of Appeal should be reduced and whether the serious violent offence declaration should be removed.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 2002
DIVISION:	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 Court
ORDERS:	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 respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent