R v H

Case [2003] QCA 392 12 September 2003

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SUPREME COURT OF QUEENSLAND

CITATION:

R v H [2003] QCA 392

PARTIES:

R
v
H

(applicant)

FILE NO/S:

CA No 171 of 2003

DC No 65 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

12 September 2003

DELIVERED AT:

Brisbane

HEARING DATE:

25 August 2003

JUDGES:

McMurdo P, Jerrard JA and Philippides J

Separate reasons for judgement of each member of the Court, each concurring as to the orders made.

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – PARICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where applicant pleaded guilty to one count of maintaining a sexual relationship with a circumstance of aggravation, two counts of incest and two counts of indecent treatment of a child under 16 – where applicant sentenced to concurrent sentences of eight years, six years and three years imprisonment respectively – where recommendation for consideration for post prison community based release after three years was made – whether sentence manifestly excessive

CRIMINAL LAW – JURISDICTION – JUDGEMENT AND PUNISHMENT – SENTENCE – factors to be taken into account – where offender in a de facto relationship with complainants natural mother – where offending took place in the family home over a two year period – where applicant has no relevant criminal history – where matter proceeded by way of ex officio indictment – whether sentence manifestly excessive

R v B [1997] QCA 213; CA No 58 of 1997, 18 June 1997
R v B [1995] QCA 636; CA No 328 of 1995, 23 October 1995
R v D [1996] QCA 363; CA No 307 of 1996, 24 September 1996
R v F [2001] QCA 137; CA No 383 of 2000, 9 April 2001
R v F [1998] QCA 131; CA No 31 of 1998, 7 April 1998
R v J [1992] QCA 425; CA No 264 of 1992, 4 December 1992
R v L [2002] QCA 268; CA No 80 of 2002, 26 July 2002

R v M [1997] QCA 470; CA No 347 of 1997, 28 October 1997

COUNSEL:

A J Moynihan for the applicant

P F Rutledge for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

MCMURDO P: I agree with the reasons for judgment of Philippides J and with the order proposed.

JERRARD JA: I have read and respectfully agree with the reasons for judgment of Philippides J, including her Honour’s observation that the reference to an appropriate sentencing range of “at least five years imprisonment, and perhaps six years” in R v L [2002] QCA 268, was a description of an indicative minimum head sentence. This is particularly so where, as in this case, the maximum available head sentence was life imprisonment.

In that regard I note that in three other sentences not disturbed by this court on appeal, and referred to by the Crown in…

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 H

Details

AGLC: R v H [2003] QCA 392
Case: [2003] QCA 392
Decision Date: 12 September 2003

CaseChat Overview and Summary

The case of R v H involved the applicant, who had pleaded guilty to various offences, including maintaining a sexual relationship with a circumstance of aggravation, two counts of incest, and two counts of indecent treatment of a child under 16. The offences were committed over a period of two years in the family home, where the applicant was in a de facto relationship with the child's natural mother. The applicant had no relevant criminal history. The court sentenced the applicant to concurrent sentences of eight years, six years, and three years imprisonment, respectively, for the various offences. A recommendation was made for consideration of post-prison community-based release after three years.

The primary legal issue before the court was whether the sentence imposed by the primary judge was manifestly excessive. The applicant argued that the sentence was disproportionate given the offender's lack of relevant criminal history, the circumstances of the offending, and the fact that the offences were committed in a familial context. The court was required to consider the principles of sentencing and the factors relevant to determining the appropriate sentence in such cases.

The court examined the principles of sentencing and the relevant factors in imposing a sentence. It considered the nature and circumstances of the offences, the offender's criminal history, the impact on the victims, and the need for denunciation and deterrence. The court also took into account the recommendation for consideration of post-prison community-based release. After careful consideration, the court found that the sentence was not manifestly excessive and dismissed the application for leave to appeal against the sentence.

The final order of the court was that the application for leave to appeal against the sentence was dismissed.

Orders

Orders of the court

Application for leave to appeal against sentence 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.

Citations

AGLC Citation

R v H [2003] QCA 392

Most Recent Citation

R v Dickeson; ex parte A-G; R v Dickeson [2004] QCA 78

Cases citing this decision · 8 of 8 shown

R v DBC; ex parte
[2012] QCA 203 Para 1

…agreed, concluded that the sentence, while at the upper end of the sentencing range, was within the proper exercise of the sentencing discretion. [11][2003] QCA 392.…
R v CAM
[2009] QCA 44

…mprisonment – where aggravated circumstances – whether the sentence was manifestly excessive R v BAT [2005] QCA 82, distinguished R v H [2003] QCA 392, distinguished R v HAN [2008] QCA 106, distinguished R v KJB [2002] QCA 448, distinguished R v SAG (2004) 147 A Crim R 361; [2004] QCA 286, cited R v SAU [2006] QC…
R v HAN
[2008] QCA 106 Para 1

…in range. That case however involved a much longer period of offending of seven years with a much younger complainant. The Crown also relies on R v H [2003] QCA 392 where a sentence of eight years was imposed however that case involved not just regular and prolonged sexual interference over a two year period but…
R v EH
[2008] QCA 67 Para 1

…nsel submitted, again a much worse case factually, given the incest counts, the relationship of trust and the threats made to the complainant. [5][2003] QCA 392.…
R v SAU
[2006] QCA 192

…whether sentence was manifestly excessive R v BAY [2005] QCA 427; CA No 110 of 2005, 18 November 2005, considered R v H [2003] QCA 392; CA No 171 of 2003, 12 September 2003, considered R v L [2002] QCA 268; CA No 80 of 2002, 26 July 2002, considered COUNSEL: A J Kimmins for the applicant B G Campbell for the resp…
R v BAY
[2005] QCA 427 Para 1

…the whole of her childhood. [4][1999] QCA 423. [5][2000] QCA 279. [6][2002] QCA 474; (2002) 135 A Crim R 253 [7][2003] QCA 68. [8][2003] QCA 134. [9][2003] QCA 392. [10][2004] QCA 445.…
R v SAG
[2004] QCA 286 Para 1

…2] QCA 143 (11 years); R v Young; ex parte A-G (Qld) (2002) 135 A Crim R 253 (10 years); R v C ; ex parte A-G (Qld) [2003] QCA 134 (10 years ); R v H [2003] QCA 392 (8 years); R v D [2003] QCA 426 (10 years); R v AP [2003] QCA 445 (14 years); and R v LJ [2004] QCA 114 (14 years). In that last matter of R v LJ the…
R v Dickeson; ex parte A-G; R v Dickeson
[2004] QCA 78

…QCA 305; CA No 89 of 2003, 21 July 2003, cited R v H [2004] QCA 37; CA No 349 of 2003, 19 February 2004, considered R v H [2003] QCA 392; CA No 171 of 2003, 12 September 2003, cited R v Herford [2001] QCA 177; CA No 334 of 2000, 11 May 2001, cited R v Myers [2002] QCA 143; CA No 353 of 2001, 19 April 2002, cited…

View all 8 citing cases →

Cases cited in this decision · 8 of 8 shown

R v L
[2002] QCA 268 Para 1

…onour’s observation that the reference to an appropriate sentencing range of “at least five years imprisonment, and perhaps six years” in R v L [2002] QCA 268, was a description of an indicative minimum head sentence. This is particularly so where, as in this case, the maximum available head sentence was life imp…
R v F
[2001] QCA 137 Para 1

…R v F [2001] QCA 137 was put forward by the Crown as a comparative. The offender in that case pleaded guilty to eight charges alleging sexual offences committed on his step-daughter, including a count of maintaining an unlawful relationship of a sexual nature with a child under 16 years, involving his having unla…
R v F
[1998] QCA 131 Para 1

…prisonment in the present case, because of the circumstance of aggravation. In this category are R v B [1995] QCA 636, R v M [1997] QCA 470 and R v F [1998] QCA 131.…
R v M
[1997] QCA 470 Para 1

…cable sentence of life imprisonment in the present case, because of the circumstance of aggravation. In this category are R v B [1995] QCA 636, R v M [1997] QCA 470 and R v F [1998] QCA 131.…
R v B
[1997] QCA 213 Para 1

…in R v J [1992] QCA 425, where seven years was imposed after a trial, R v D [1996] QCA 363, where nine years was imposed following a plea, and R v B [1997] QCA 213, where eight years was imposed following a trial. In B this court referred (at page 4) to the observation at page 10 of the judgment in J, where this…
R v D
[1996] QCA 363 Para 1

…penalty was 14 years imprisonment. These were respectively the decisions in R v J [1992] QCA 425, where seven years was imposed after a trial, R v D [1996] QCA 363, where nine years was imposed following a plea, and R v B [1997] QCA 213, where eight years was imposed following a trial. In B this court referred (…
These were respectively the decisions in R v J
[1992] QCA 425 Para 1

…isonment were imposed, in circumstances where the maximum available penalty was 14 years imprisonment. These were respectively the decisions in R v J [1992] QCA 425, where seven years was imposed after a trial, R v D [1996] QCA 363, where nine years was imposed following a plea, and R v B [1997] QCA 213, where ei…
[1995] QCA 636
[1995] QCA 636 Para 1

…sed to a maximum applicable sentence of life imprisonment in the present case, because of the circumstance of aggravation. In this category are R v B [1995] QCA 636, R v M [1997] QCA 470 and R v F [1998] QCA 131.…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v H [2003] QCA 392
PARTIES:	R v H (applicant)
FILE NO/S:	CA No 171 of 2003 DC No 65 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	12 September 2003
DELIVERED AT:	Brisbane
HEARING DATE:	25 August 2003
JUDGES:	McMurdo P, Jerrard JA and Philippides J Separate reasons for judgement of each member of the Court, each concurring as to the orders made.
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – PARICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where applicant pleaded guilty to one count of maintaining a sexual relationship with a circumstance of aggravation, two counts of incest and two counts of indecent treatment of a child under 16 – where applicant sentenced to concurrent sentences of eight years, six years and three years imprisonment respectively – where recommendation for consideration for post prison community based release after three years was made – whether sentence manifestly excessive CRIMINAL LAW – JURISDICTION – JUDGEMENT AND PUNISHMENT – SENTENCE – factors to be taken into account – where offender in a de facto relationship with complainants natural mother – where offending took place in the family home over a two year period – where applicant has no relevant criminal history – where matter proceeded by way of ex officio indictment – whether sentence manifestly excessive R v B [1997] QCA 213; CA No 58 of 1997, 18 June 1997 R v B [1995] QCA 636; CA No 328 of 1995, 23 October 1995 R v D [1996] QCA 363; CA No 307 of 1996, 24 September 1996 R v F [2001] QCA 137; CA No 383 of 2000, 9 April 2001 R v F [1998] QCA 131; CA No 31 of 1998, 7 April 1998 R v J [1992] QCA 425; CA No 264 of 1992, 4 December 1992 R v L [2002] QCA 268; CA No 80 of 2002, 26 July 2002 R v M [1997] QCA 470; CA No 347 of 1997, 28 October 1997
COUNSEL:	A J Moynihan for the applicant P F Rutledge for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent