R v George

[2006] QCA 1

SUPREME COURT OF QUEENSLAND

CITATION:

R v George [2006] QCA 1

PARTIES:

R
v
GEORGE, William
(applicant)

FILE NO/S:

CA No 222 of 2005
DC No 389 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED EX TEMPORE ON:

31 January 2006

DELIVERED AT:

Brisbane

HEARING DATE:

31 January 2006

JUDGES:

McMurdo P, McPherson JA and Muir 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 – GENERALLY - where applicant convicted of assaulting his estranged wife and being in her premises with intent to commit an indictable offence – where applicant carried a knife and rope onto the premises - where factual issues were disputed by counsel at trial - where applicant was also charged with two counts of indecent dealing with his step-granddaughter but was acquitted of these counts – where applicant claims that sentencing judge erroneously took these charges into account when sentencing the applicant – whether trial judge misapplied the law relating to burden of proof when considering factual issues – whether trial judge gave insufficient weight to possible mitigating factors – whether sentence was manifestly excessive in all the circumstances

Evidence Act 1977 (Qld), s 132C
Penalties and Sentences Act 1992 (Qld), s 15

R v Clayton [1989] 2 Qd R 439, cited

COUNSEL:

M P Sumner-Potts for the applicant
B G Campbell for the respondent

SOLICITORS:

Edna Cuthbertson & Co (Cairns) for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT:  The applicant pleaded guilty on 29 July 2005 to assaulting his estranged wife and doing her bodily harm and to being in her premises and unlawfully assaulting her and doing her bodily harm.  He was sentenced to two-and-a-half years' imprisonment.  The maximum penalty on each count was respectively seven years and 14 years' imprisonment.

The indictment containing those charges to which he pleaded guilty also charged two counts of indecent treatment with a circumstance of aggravation.  Those counts were tried separately and the applicant acquitted on them immediately before he pleaded guilty to the two counts that concern this Court.

The applicant contends that the learned primary judge erred as to the burden of proof on factual issues on sentence, gave insufficient weight to mitigating factors and that the sentence was manifestly excessive. 

The applicant and the complainant married in 1983.  They had separated but continued to live in the same house for some years.  Each had children from earlier relationships.  The complainant had grandchildren.  One granddaughter lived with the complainant.  In March 2004, that granddaughter complained that the applicant had sexually abused her.  A complaint was made to police and the applicant was charged.  He then ceased…