R v Gogouk - [2006] QCA 320

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gogouk [2006] QCA 320

PARTIES:

R
v
GOGOUK, Gatkouth Yout
(applicant)

FILE NO/S:

CA No 126 of 2006
DC No 145 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

30 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2006

JUDGES:

McPherson and Holmes JJA and Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application for leave to appeal against sentence granted. Set aside the sentence and in lieu thereof impose a term of six years and fix the parole eligibility date as 28 November 2008.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where the accused was found guilty by a jury of rape – where the offence was committed against a sleeping woman in the Queen Street Mall at night – where the accused is a Sudanese national with a traumatic history – where the accused showed no remorse – where the sentencing judge applied a head sentence of eight years’ imprisonment and made a declaration that the accused had committed a serious violent offence – whether the sentencing judge had applied the correct principles in sentencing the accused – whether the sentence was manifestly excessive

Corrective Services Act 2006 (Qld) s 184
Criminal Code 1899 (Qld) s 671G(2)
Penalties and Sentences Act 1992 (Qld) s 160D, s 161A, s 161B

R v Q [2003] QCA 421; CA No 78 of 2003, 26 September 2003, considered

COUNSEL:

P Davis SC and M Dight for the applicant
M Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: I will ask Justice Wilson to deliver her reasons in this matter.

WILSON J: On 27 April 2006 a jury found the applicant guilty of rape. The next day he was sentenced to a term of imprisonment of six years seven months with a declaration that he had committed a serious violent offence. He seeks leave to appeal against that sentence on the ground that it is manifestly excessive.

The offence was committed at about 10 p.m. one Wednesday evening in the Queen Street Mall. The complainant, a young woman aged 19, had been at a nightclub, The Basement, in the Wintergarden complex which fronts the mall. After spending time there with other young people, talking, drinking and listening to music, she was feeling a little tired and sick and so she went out on to the mall for some air. She lay down on a bench positioned in the centre of the mall and fell asleep. When she woke up she was lying on her back and the applicant was…

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 Gogouk

Details

AGLC: R v Gogouk [2006] QCA 320
Case: [2006] QCA 320
Decision Date: 30 August 2006

CaseChat Overview and Summary

In the case of R v Gogouk, the appellant was convicted of raping a woman who was asleep in the Queen Street Mall in Brisbane. The appellant, a Sudanese national with a history of trauma, did not display any remorse for his actions. The sentencing judge imposed a head sentence of eight years’ imprisonment and declared that the appellant had committed a serious violent offence. The appellant subsequently applied for leave to appeal against the sentence, arguing that it was manifestly excessive and that the sentencing judge had not applied the correct principles in determining the appropriate sentence.

The primary legal issue before the court was whether the sentence imposed by the sentencing judge was manifestly excessive or had been arrived at by an error in the application of sentencing principles. The court had to consider the nature and circumstances of the offence, the appellant's background, and the principles of sentencing relevant to the crime committed. The appellant contended that the sentencing judge had failed to adequately consider the mitigating factors of his traumatic history and lack of remorse, which should have resulted in a lesser sentence. The Crown, on the other hand, argued that the sentence was appropriate given the gravity of the offence and the need to deter similar crimes in the future.

The court found that while the appellant's history of trauma and lack of remorse were mitigating factors, they did not warrant a significantly reduced sentence. However, the court determined that the sentence imposed was slightly excessive. The court noted that the sentencing judge had not adequately considered the mitigating factors and had placed undue emphasis on the need for deterrence. The court also found that the parole eligibility date set by the sentencing judge was too late, given the appellant's background and potential for rehabilitation. Consequently, the court granted the appellant leave to appeal against the sentence.

The court set aside the original sentence and imposed a term of six years' imprisonment, with parole eligibility fixed at 28 November 2008. The court held that this sentence better balanced the need for punishment, deterrence, and rehabilitation, taking into account the appellant's background and the principles of sentencing. The court also noted that the reduced sentence would provide the appellant with an opportunity for rehabilitation and reintegration into society.

Orders

Orders of the court

Application for leave to appeal against sentence granted. Set aside the sentence and in lieu thereof impose a term of six years and fix the parole eligibility date as 28 November 2008.

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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CITATION:	R v Gogouk [2006] QCA 320
PARTIES:	R v GOGOUK, Gatkouth Yout (applicant)
FILE NO/S:	CA No 126 of 2006 DC No 145 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	30 August 2006
DELIVERED AT:	Brisbane
HEARING DATE:	30 August 2006
JUDGES:	McPherson and Holmes JJA and Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application for leave to appeal against sentence granted. Set aside the sentence and in lieu thereof impose a term of six years and fix the parole eligibility date as 28 November 2008.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where the accused was found guilty by a jury of rape – where the offence was committed against a sleeping woman in the Queen Street Mall at night – where the accused is a Sudanese national with a traumatic history – where the accused showed no remorse – where the sentencing judge applied a head sentence of eight years’ imprisonment and made a declaration that the accused had committed a serious violent offence – whether the sentencing judge had applied the correct principles in sentencing the accused – whether the sentence was manifestly excessive Corrective Services Act 2006 (Qld) s 184 Criminal Code 1899 (Qld) s 671G(2) Penalties and Sentences Act 1992 (Qld) s 160D, s 161A, s 161B R v Q [2003] QCA 421; CA No 78 of 2003, 26 September 2003, considered
COUNSEL:	P Davis SC and M Dight for the applicant M Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent