R v Lee - [2012] QCA 313

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lee [2012] QCA 313

PARTIES:

R
v
LEE, Douglas Phillip Allan
(applicant)

FILE NO/S:

CA No 142 of 2012
DC No 479 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

16 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

26 October 2012

JUDGES:

Margaret McMurdo P and White JA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

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 applicant was convicted of the rape of a seven year old girl and sentenced to three years and six months imprisonment with parole eligibility after half the sentence – where applicant’s counsel had sought head sentence of three years at trial – where applicant had lengthy criminal history – where prosecution case was strong – whether sentence was manifestly excessive in all the circumstances

Corrective Services Act 2006 (Qld), s 176, s 194

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, considered
R v AAD[2008] QCA 4, considered
R v Frame[2009] QCA 9, cited
R v NH[2006] QCA 476, considered
R v SAH[2004] QCA 329, considered
Veen v The Queen [No 2] (1998) 164 CLR 465; [1988] HCA 14, followed

COUNSEL:

The applicant appeared on his own behalf
A W Moynihan SC for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: I agree with White JA's reasons for refusing this application for leave to appeal against sentence.

WHITE JA: On 4 June 2012 the appellant was convicted after a three day trial in the District Court at Ipswich of raping a seven year old girl on 8 May 2011. He was sentenced to imprisonment for three and a half years with parole eligibility fixed at 4 March 2014, that is, after serving half of the sentence imposed.

He contended in his grounds of appeal that his conviction was unsafe and unsatisfactory having regard to all of the evidence. He sought leave to appeal his sentence on the basis that it was manifestly excessive in all the circumstances.

By a document filed on 23 October 2012 the appellant indicated that he was representing himself and was no longer pursuing his appeal against conviction. He confirmed this at the appeal hearing on 26 October. Accordingly, an order was made refusing his appeal against conviction. He was desirous of progressing his application for leave to appeal against his sentence. It is appropriate to refer to him hereafter as “the applicant”.

The applicant had written out the submissions which he proposed reading to the court in respect of his sentence application. Those submissions were then copied to assist the court and the respondent…

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 Lee

Details

AGLC: R v Lee [2012] QCA 313
Case: [2012] QCA 313
Decision Date: 16 November 2012

CaseChat Overview and Summary

The case of R v Lee involved the appellant who was convicted of the rape of a seven-year-old girl. The appellant was sentenced to three years and six months imprisonment, with eligibility for parole after serving half the sentence. The appellant's counsel had previously sought a head sentence of three years during the trial. The appellant had a substantial criminal history, and the prosecution case was robust. The issue at the heart of this appeal was whether the sentence imposed was manifestly excessive in the given circumstances.

The court considered the grounds for interference with the sentence, focusing on whether it was manifestly excessive or inadequate. The appellant's counsel argued that the sentence was too harsh, particularly given the head sentence sought at trial and the appellant's criminal history. The prosecution, however, contended that the sentence was appropriate considering the gravity of the crime and the appellant's criminal record. The court carefully weighed these arguments and the relevant legal principles.

After thorough consideration, the court determined that the sentence was not manifestly excessive. The court found that the sentence was commensurate with the severity of the offence and took into account the appellant's criminal history and the prosecution's strong case. The appeal against the sentence was dismissed, and the application for leave to appeal was refused. The sentence of three years and six months imprisonment, with parole eligibility after half the sentence, was upheld.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

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 Lee [2012] QCA 313
PARTIES:	R v LEE, Douglas Phillip Allan (applicant)
FILE NO/S:	CA No 142 of 2012 DC No 479 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	16 November 2012
DELIVERED AT:	Brisbane
HEARING DATE:	26 October 2012
JUDGES:	Margaret McMurdo P and White JA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the order made
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 applicant was convicted of the rape of a seven year old girl and sentenced to three years and six months imprisonment with parole eligibility after half the sentence – where applicant’s counsel had sought head sentence of three years at trial – where applicant had lengthy criminal history – where prosecution case was strong – whether sentence was manifestly excessive in all the circumstances Corrective Services Act 2006 (Qld), s 176, s 194 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, considered R v AAD[2008] QCA 4, considered R v Frame[2009] QCA 9, cited R v NH[2006] QCA 476, considered R v SAH[2004] QCA 329, considered Veen v The Queen [No 2] (1998) 164 CLR 465; [1988] HCA 14, followed
COUNSEL:	The applicant appeared on his own behalf A W Moynihan SC for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent