R v HCP - [2023] QCA 211

SUPREME COURT OF QUEENSLAND

CITATION:

R v HCP [2023] QCA 211

PARTIES:

R
v
HCP
(applicant)

FILE NO/S:

CA No 160 of 2022
DC No 725 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 14 July 2022 (Smith DCJA)

DELIVERED ON:

3 November 2023

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2023

JUDGES:

Morrison and Boddice JJA and North J

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant sought leave to appeal against sentence – where the applicant was convicted of 22 counts of sexual offending and six counts supplying a dangerous drug – where the applicant was declared to have been convicted of a serious violent offence – whether the sentence was manifestly excessive

CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – FACTUAL BASIS FOR SENTENCE – GENERALLY – where circumstances of aggravation were not charged in the indictment – where the applicant contends that the sentencing judge relied on circumstances of aggravation

District Court of Queensland Act1967 (Qld), s 61
Drugs Misuse Act 1996 (Qld), s 6
Penalties and Sentences Act1992 (Qld), s 161A, Schedule 1

Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17, cited
R v D [1996] 1 Qd R 363; [1995] QCA 329, cited
R v De Simoni (1981) 147 CLR 386; [1981] HCA 31, cited
R v Gerhardt (2019) 3 QR 48; [2019] QCA 283, cited

COUNSEL:

A M Hoare and S P Carter for the applicant (pro bono)
M A Green for the respondent

SOLICITORS:

Mackenzie Mitchell Solicitors for the applicant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: I agree with the reasons and orders proposed by North J, and with the additional reasons of Boddice JA.
BODDICE JA: North J’s comprehensive summary of the offences, agreed statement of facts and sentencing remarks, which I gratefully adopt, allows me to briefly state my reasons for ordering that the application for leave to appeal be refused.
The principles referred to in R v De Simoni[1] expressly allow a sentencing judge to consider all of the conduct of an offender, including aggravated conduct, provided that conduct does not warrant a conviction for a more serious offence.
[1](1981) 147 CLR 383, 389 per Gibbs CJ.
A consideration of the sentencing remarks supports a conclusion that the sentencing judge did not act contrary to those principles.
Whilst there was reference in the agreed statement of facts to the applicant having given the young complainants cannabis, those references formed the particulars expressly relevant to the circumstances in which the offending, the subject of the charges, had been committed by the applicant.
Those circumstances included the corruption of two young complainants by the applicant, who was in a position of trust,…

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 HCP

Details

AGLC: R v HCP [2023] QCA 211
Case: [2023] QCA 211
Decision Date: 3 November 2023

CaseChat Overview and Summary

The applicant, HCP, appealed against his sentence following a conviction on 22 counts of sexual offending and six counts of supplying a dangerous drug. The case was heard in the High Court of Australia, which was asked to consider whether the sentence imposed was manifestly excessive. The applicant argued that the sentence was not appropriate given the circumstances, and sought leave to appeal on the basis that it was manifestly excessive or inadequate.

The central legal issue the court had to decide was whether the sentence imposed on the applicant was manifestly excessive. This involved considering the nature and gravity of the offences, the circumstances of aggravation, and the overall sentence. The applicant contended that the sentencing judge had relied on circumstances of aggravation that were not charged in the indictment, thereby influencing the sentence unjustifiably. The court was tasked with determining if these alleged errors warranted interference with the sentence.

The court examined the sentence imposed and the circumstances of the offences, including the severity of the sexual offences and the supply of dangerous drugs. The court concluded that the sentence was proportionate to the gravity of the crimes committed. It held that the sentencing judge had not erred in considering circumstances of aggravation that were not charged, as these circumstances were evident from the facts of the case. The court found no basis to interfere with the sentence, thereby refusing the application for leave to appeal against sentence.

The final orders of the court were that the application for leave to appeal against sentence was refused. The court found no ground to support the contention that the sentence was manifestly excessive or inadequate, thereby affirming the original sentence imposed by the lower court.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

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 HCP [2023] QCA 211
PARTIES:	R v HCP (applicant)
FILE NO/S:	CA No 160 of 2022 DC No 725 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 14 July 2022 (Smith DCJA)
DELIVERED ON:	3 November 2023
DELIVERED AT:	Brisbane
HEARING DATE:	22 August 2023
JUDGES:	Morrison and Boddice JJA and North J
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant sought leave to appeal against sentence – where the applicant was convicted of 22 counts of sexual offending and six counts supplying a dangerous drug – where the applicant was declared to have been convicted of a serious violent offence – whether the sentence was manifestly excessive CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – FACTUAL BASIS FOR SENTENCE – GENERALLY – where circumstances of aggravation were not charged in the indictment – where the applicant contends that the sentencing judge relied on circumstances of aggravation District Court of Queensland Act1967 (Qld), s 61 Drugs Misuse Act 1996 (Qld), s 6 Penalties and Sentences Act1992 (Qld), s 161A, Schedule 1 Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17, cited R v D [1996] 1 Qd R 363; [1995] QCA 329, cited R v De Simoni (1981) 147 CLR 386; [1981] HCA 31, cited R v Gerhardt (2019) 3 QR 48; [2019] QCA 283, cited
COUNSEL:	A M Hoare and S P Carter for the applicant (pro bono) M A Green for the respondent
SOLICITORS:	Mackenzie Mitchell Solicitors for the applicant (pro bono) Director of Public Prosecutions (Queensland) for the respondent