R v Hennessy - [2002] QCA 523

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hennessy [2002] QCA 523

PARTIES:

R
v
HENNESSY, Paul Andrew
(applicant)

FILE NO/S:

CA No 308 of 2002
DC No 80 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED EXTEMPORE ON:

28 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2002

JUDGES:

Davies and Williams JJA and Helman J
Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDERS:

1. Grant leave to appeal
2. Allow the appeal to the extent of deleting the provision that the sentence be suspended after nine months and in lieu thereof, inserting that the sentence be suspended after serving 11 weeks, otherwise the sentence imposed should stand

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 17 year old applicant pleaded guilty to charge of rape of his 15 year old girlfriend – where remorse was expressed by the applicant prior to the offence being discovered – no complaint – offence discovered through letter expressing remorse - where applicant was sentenced to three years’ imprisonment to be suspended after nine months with an operational period of three years – whether the sentence was manifestly excessive - order sentence be suspended after serving 11 weeks

R v Beaver CA 114 of 1992, 2 June 1992, distinguished
R v Stallan [1995] QCA 109; CA 8 of 1994, 15 March 1995, distinguished

COUNSEL:

M A Green for the applicant
B G Campbell for the respondent

SOLICITORS:

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

WILLIAMS JA: The applicant pleaded guilty in the District Court at Bundaberg, on the 13th of September 2002, to one count of rape. He was sentenced to three years imprisonment, to be suspended after nine months, with an operational period of three years.

This is an application for leave to appeal against that sentence on the ground that in all the relevant circumstances it is manifestly excessive. The facts could be described as unusual and in the circumstances, it is desirable that the background facts be set out at some length.

The complainant girl was born on the 27th of June 1985, making her 15 at the time of the commission of the offence. The applicant was born on 1 December 1982, making him aged 17 at the time of the offence.

The complainant and the applicant met in about April 2000 and about two weeks later they commenced a sexual relationship, which included sexual intercourse. The complainant's parents were aware of the boyfriend/girlfriend relationship, but were not aware of the sexual nature of that relationship.

They did go to some length to point out the complainant's age to the applicant. There was one…

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 Hennessy

Details

AGLC: R v Hennessy [2002] QCA 523
Case: [2002] QCA 523
Decision Date: 28 November 2002

CaseChat Overview and Summary

The appeal arose from a conviction in the County Court of Victoria, where the respondent, Hennessy, was found guilty of the rape of his 15-year-old girlfriend, who was 17 years old at the time of the offence. The court was required to determine whether the sentence imposed was manifestly excessive and, if so, what the appropriate remedy would be. The respondent had expressed remorse prior to the offence being discovered and had pleaded guilty. There was no complaint from the victim, and the offence came to light through a letter expressing remorse.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. The respondent argued that the sentence should be suspended after a shorter period, specifically after serving 11 weeks, rather than the nine months determined by the County Court. The court had to consider the principles of sentencing and the factors relevant to the imposition of an appropriate sentence in cases involving sexual offences against a person. The court also considered the circumstances of the case, including the age of the offender, the nature of the offence, and the level of remorse expressed.

The court found that the sentence imposed was indeed manifestly excessive and granted leave to appeal. The appeal was allowed to the extent of modifying the sentence. The court deleted the provision that the sentence be suspended after nine months and instead ordered that the sentence be suspended after serving 11 weeks. The court held that this modification was necessary to ensure the sentence was proportionate and appropriate in light of the circumstances of the case. The court confirmed that, in all other respects, the sentence imposed by the County Court should stand.

The final orders of the court were to grant leave to appeal and to allow the appeal to the extent of modifying the sentence. The sentence was to be suspended after serving 11 weeks, with the operational period remaining at three years. This decision ensured that the sentence was appropriate and proportionate to the offence committed, taking into account the specific circumstances and the level of remorse expressed by the respondent.

Orders

Orders of the court

1. Grant leave to appeal

2. Allow the appeal to the extent of deleting the provision that the sentence be suspended after nine months and in lieu thereof, inserting that the sentence be suspended after serving 11 weeks, otherwise the sentence imposed should stand

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 Hennessy [2002] QCA 523
PARTIES:	R v HENNESSY, Paul Andrew (applicant)
FILE NO/S:	CA No 308 of 2002 DC No 80 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Bundaberg
DELIVERED EXTEMPORE ON:	28 November 2002
DELIVERED AT:	Brisbane
HEARING DATE:	28 November 2002
JUDGES:	Davies and Williams JJA and Helman J Separate reasons for judgment of each member of the court, each concurring as to the orders made
ORDERS:	1. Grant leave to appeal 2. Allow the appeal to the extent of deleting the provision that the sentence be suspended after nine months and in lieu thereof, inserting that the sentence be suspended after serving 11 weeks, otherwise the sentence imposed should stand
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 17 year old applicant pleaded guilty to charge of rape of his 15 year old girlfriend – where remorse was expressed by the applicant prior to the offence being discovered – no complaint – offence discovered through letter expressing remorse - where applicant was sentenced to three years’ imprisonment to be suspended after nine months with an operational period of three years – whether the sentence was manifestly excessive - order sentence be suspended after serving 11 weeks R v Beaver CA 114 of 1992, 2 June 1992, distinguished R v Stallan [1995] QCA 109; CA 8 of 1994, 15 March 1995, distinguished
COUNSEL:	M A Green for the applicant B G Campbell for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent