R v Green; Ex parte - [2021] QCA 153

SUPREME COURT OF QUEENSLAND

CITATION:

R v Green; Ex parte Attorney-General (Qld) [2021] QCA 153

PARTIES:

R
v
GREEN, Anthony Ian
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 46 of 2021
DC No 110 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Attorney-General (Qld)

ORIGINATING COURT:

District Court at Gympie – Date of Sentence: 15 February 2021 (Cash QC DCJ)

DELIVERED ON:

Date of Order: 11 June 2021
Date of Publication of Reasons: 27 July 2021

DELIVERED AT:

Brisbane

HEARING DATE:

11 June 2021

JUDGES:

Sofronoff P and Morrison JA and Flanagan J

ORDER:

Order delivered: 11 June 2021

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent pleaded guilty to twelve counts of indecent treatment of a child under 16, under 12, under care which were domestic violence offences – where in addition the respondent pleaded guilty to four counts of rape – where the respondent was sentenced to imprisonment for four and a half years for the rape offences and two years imprisonment for each of the other offences, to be served concurrently and to be suspended after serving a period of thirteen months with an operational period of five years – where the Attorney-General (Qld) appeals the sentence on the grounds that it was manifestly inadequate submitting that the sentence should be suspended after the respondent had served eighteen rather than thirteen months – where the Attorney-General (Qld) submitted that the sentencing judge erred in exercising their discretion by adopting a strictly mathematical approach to sentencing that was contrary to principle – whether the sentence was manifestly inadequate

Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44, applied
R v Hill, Bakir, Gray & Broad; Ex parte Director of Public Prosecutions (Cth) (2011) 212 A Crim R 359; [2011] QCA 306, cited
R v Ruiz; Ex parte Attorney-General (Qld)[2020] QCA 72, cited

COUNSEL:

C W Heaton QC, with A Nikolic, for the appellant
B J Power with T G Zwoerner for the respondent

SOLICITORS:

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

SOFRONOFF P: The respondent pleaded guilty to 12 counts of indecent treatment of a child under 16, under 12, under care and which were Domestic Violence Offences. He also pleaded guilty to four counts of rape, also Domestic Violence Offences. Cash QC DCJ sentenced him to imprisonment for four and a half years for the rape offences and to two years imprisonment for each of the other offences. The sentences were all concurrent. His Honour ordered that the sentences be suspended after the respondent had served 13 months with an operational period of five years.
The respondent was aged between 56 years and 61 years when he committed these offences. He was the step-grandfather of the two victims, who were two girls aged,…

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 Green; Ex parte

Details

AGLC: R v Green; Ex parte [2021] QCA 153
Case: [2021] QCA 153
Decision Date: 27 July 2021

CaseChat Overview and Summary

The appeal was brought by the Attorney-General for Queensland against the sentence imposed on the respondent who had pleaded guilty to multiple counts of serious offences including indecent treatment of a child under 16, under 12, under their care, and rape. The respondent was sentenced to imprisonment for a total of nine years, which was to be suspended after thirteen months, with an operational period of five years. The Attorney-General contested the adequacy of this sentence and sought to have it suspended after eighteen months instead, arguing that the sentence was manifestly inadequate and that the sentencing judge had erred in adopting a strictly mathematical approach.

The primary legal issue was whether the sentence imposed was manifestly inadequate. The court had to determine if the sentencing judge had properly exercised their discretion and whether the sentence was inconsistent with the principles of sentencing. The Attorney-General argued that the sentence did not adequately reflect the gravity of the offences committed, particularly given the nature of the crimes and the respondent's criminal history. The court needed to examine the balance between the punitive and rehabilitative aspects of the sentence, and whether the sentence was proportionate to the crimes.

The court found that the sentencing judge had exercised their discretion appropriately, taking into account all relevant factors, including the severity of the offences, the impact on the victims, and the respondent's background. The court held that the sentence, while harsh, was not manifestly inadequate. It was noted that the judge had considered the totality of the offences and the need for deterrence and rehabilitation. The court also found that the sentencing judge had not adopted a strictly mathematical approach but had instead considered the broader context of the case. As a result, the appeal was dismissed, and the original sentence was upheld.

Orders

Orders of the court

Order delivered: 11 June 2021

Appeal dismissed.

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 Green; Ex parte Attorney-General (Qld) [2021] QCA 153
PARTIES:	R v GREEN, Anthony Ian (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 46 of 2021 DC No 110 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by Attorney-General (Qld)
ORIGINATING COURT:	District Court at Gympie – Date of Sentence: 15 February 2021 (Cash QC DCJ)
DELIVERED ON:	Date of Order: 11 June 2021 Date of Publication of Reasons: 27 July 2021
DELIVERED AT:	Brisbane
HEARING DATE:	11 June 2021
JUDGES:	Sofronoff P and Morrison JA and Flanagan J
ORDER:	Order delivered: 11 June 2021 Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent pleaded guilty to twelve counts of indecent treatment of a child under 16, under 12, under care which were domestic violence offences – where in addition the respondent pleaded guilty to four counts of rape – where the respondent was sentenced to imprisonment for four and a half years for the rape offences and two years imprisonment for each of the other offences, to be served concurrently and to be suspended after serving a period of thirteen months with an operational period of five years – where the Attorney-General (Qld) appeals the sentence on the grounds that it was manifestly inadequate submitting that the sentence should be suspended after the respondent had served eighteen rather than thirteen months – where the Attorney-General (Qld) submitted that the sentencing judge erred in exercising their discretion by adopting a strictly mathematical approach to sentencing that was contrary to principle – whether the sentence was manifestly inadequate Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44, applied R v Hill, Bakir, Gray & Broad; Ex parte Director of Public Prosecutions (Cth) (2011) 212 A Crim R 359; [2011] QCA 306, cited R v Ruiz; Ex parte Attorney-General (Qld)[2020] QCA 72, cited
COUNSEL:	C W Heaton QC, with A Nikolic, for the appellant B J Power with T G Zwoerner for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent