R v Mogg

Case [2024] QCA 125 25 June 2024

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Mogg [2024] QCA 125

PARTIES:

R
v
MOGG, Raymond Joseph
(applicant)

FILE NO/S:

CA No 184 of 2023
DC No 90 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 4 October 2023 (Clare SC DCJ)

DELIVERED ON:

25 June 2024

DELIVERED AT:

Brisbane

HEARING DATE:

9 May 2024

JUDGES:

Bond and Boddice JJA and Callaghan J

ORDERS:

1. Leave to appeal the sentence on the offence of attempted rape be granted.

2. The appeal against that sentence be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of sexual assault, one count of attempted rape and one count of deprivation of liberty – where the applicant was sentenced to 18 months imprisonment for the first sexual assault count, two years imprisonment for the second sexual assault count, seven years imprisonment for the attempted rape count and 18 months imprisonment for the deprivation of liberty count – where the Crown submitted a sentencing range between seven to nine years for the attempted rape count –where the applicant’s counsel submitted a sentencing range of four to five years for the attempted rape count – whether the sentence was manifestly excessive

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
R v Armstrong [2006] QCA 158, distinguished
R v Baxter[2010] QCA 235, distinguished
R v Crofts [1999] 1 Qd R 386; [1998] QCA 60, distinguished
R v Eastwell[1992] QCA 109, distinguished
R v Pham (2009) 197 A Crim R 246; [2009] QCA 242, distinguished
R v Tory[2022] QCA 276, distinguished

COUNSEL:

P J Wilson for the applicant
R J Marks for the respondent

SOLICITORS:

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

BOND JA: I agree with the reasons for judgment of Boddice JA and the orders proposed by his Honour.
BODDICE JA: Callaghan J’s comprehensive summaries of the offences, the applicant’s personal circumstances and the comparable authorities, which I gratefully adopt, allow me to briefly state my reasons for granting leave to appeal, but dismissing the appeal.
The offence of attempted rape was particularly serious. It involved predatory and persistent conduct against a young, extremely vulnerable woman found asleep in a public street. The applicant did not desist; the incident ended only as a consequence of the complainant’s fortitude in fleeing the scene.
Whilst the applicant ultimately entered a plea of guilty to that offence, the applicant had shown no remorse for his conduct, having falsely asserted consensual conduct by the complainant, who was subjected to rigorous cross-examination. The plea of guilty was late, after the applicant had previously entered a plea of not guilty and the…

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 Mogg

Details

AGLC: R v Mogg [2024] QCA 125
Case: [2024] QCA 125
Decision Date: 25 June 2024

CaseChat Overview and Summary

In the case of R v Mogg, the applicant appealed against the sentence imposed by the lower court. The applicant had pleaded guilty to two counts of sexual assault, one count of attempted rape, and one count of deprivation of liberty. The lower court had sentenced the applicant to 18 months imprisonment for the first sexual assault count, two years imprisonment for the second sexual assault count, seven years imprisonment for the attempted rape count, and 18 months imprisonment for the deprivation of liberty count. The Crown submitted a sentencing range between seven to nine years for the attempted rape count, while the applicant’s counsel submitted a sentencing range of four to five years for the attempted rape count.

The legal issue in this case was whether the sentence imposed on the applicant for the attempted rape count was manifestly excessive. The court considered the nature of the offence, the vulnerability of the victim, and the sentencing ranges provided by both the Crown and the applicant’s counsel. The court also considered the sentencing principles and guidelines set out in relevant legislation and case law. The court concluded that the sentence imposed by the lower court was manifestly excessive and did not reflect the appropriate balance between punishment and rehabilitation.

The court noted that since the case of Eastwell, no case of attempted rape had resulted in a sentence exceeding six years imprisonment. The court also noted that the applicant’s case did not involve any aggravating features such as gratuitous violence and injury. The court further noted that the applicant’s guilty plea did not warrant a significant reduction in the sentence. The court found that a sentence of six years imprisonment was appropriate for the offence of attempted rape committed by the applicant.

The court granted leave to appeal the sentence on the offence of attempted rape, but dismissed the appeal. The court set aside the sentence imposed by the lower court and sentenced the applicant to imprisonment for a period of six years. The court also allowed that the applicant’s statutory expectation as to a parole eligibility date be brought forward by no more than three months. However, since the court’s judgment would be of no functional effect, it was unnecessary to fix that date with precision, nor to propose any other orders.

Orders

Orders of the court

1. Leave to appeal the sentence on the offence of attempted rape be granted.

2. The appeal against that sentence be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Its age, the absence of certainty as to that which was involved in the attempted rape, the fact that it seems that some act of penetration occurred, the presence of injuries and the fact that Eastwell went to trial (and persisted with denials) combine to limit the usefulness of this case as any sort of “yardstick.” It cannot, to my mind, rise to the level of an authority which displaces the conclusion suggested by the other cases considered.Conclusions The Court was not referred to a single case of attempted rape in the 32 years since Eastwell was decided in which the sentence exceeded six years imprisonment. The cases to which the Court was referred – and in particular the sentences imposed in cases under the same statutory regime and in which guilty pleas were entered – do not support a sentence of seven years imprisonment. Nor does any observation made by this Court. Such observations as have been made tell against the validity of a seven-year sentence. To my mind this combination of features compels the conclusion that, in order to ensure consistency of approach within the applicable statutory regime, the sentence imposed should be deemed manifestly excessive. It might well be appropriate for an offence of attempted rape that was attended by aggravating features such as gratuitous violence and injury but – and notwithstanding the vulnerability of his victim – the applicant’s case was not in that category. This was still a serious instance of attempted rape, warranting a severe penalty. My view as to disposition is not shared by the majority and the orders I propose will be of no effect, but I would grant the application, allow the appeal and set aside the sentence imposed below. In its place, I would sentence the applicant to imprisonment for a period of six years.Parole Eligibility Given the timing of the plea, and in particular the fact that the complainant was cross examined, it is possible to make only small allowance for the applicant’s guilty plea. It could not reasonably be seen as a reflection of remorse, nor as any real clue about the applicant’s prospects of rehabilitation. At most it meant that some of the Court’s time and resources were saved. That reduced to the difference between the time taken by the sentence and the time that would have been taken by a short (no more than two day) trial. The applicant is a mature man with a relevant criminal history. I would have allowed that his statutory expectation as to a parole eligibility date be brought forward by no more than three months. Since my judgment will be of no functional effect it is unnecessary to fix that date with precision, nor to propose any other orders.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

R v Mogg [2024] QCA 125

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Tory [2022] QCA 276
Citation 1 (Para 13)

…es of an attempted rape can warrant the imposition of a sentence higher than that imposed for an objectively less serious offence of rape. [5][2022] QCA 276.…
R v Kane; Ex parte [2022] QCA 242
Citation 2 (Para 2)

…sregarded. Although a lighter penalty (three years imprisonment holly suspended) was imposed in the case of R v Kane; Ex parte Attorney-General (Qld) [2022] QCA 242, it involved an offence with a lower maximum penalty, and the special considerations that attend an appeal against sentence by the Attorney-General.…
R v Smith [2022] QCA 55
Citation 3 (Para 44)

…R v Smith [2022] QCA 55 was a case involve penile penetration and unprotected intercourse. The circumstances were distressing, and the impact on the victim severe. Smith had an appalling criminal history and was on a suspended sentence at the time of the offence. The fact that he received eight years imprisonmen…
R v Saunders [2016] QCA 221
Citation 4 (Para 38)

…s unreasonable or plainly unjust such as to justify the inference that there must have been a misapplication of principle.”[17] [17] R v Saunders [2016] QCA 221 at [16].…
Barbaro v The Queen [2014] HCA 2
Citation 5

…five years for the attempted rape count – whether the sentence was manifestly excessive Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited R v Armstrong [2006] QCA 158, distinguished R v Baxter [2010] QCA 235, distinguished R v Crofts [1999] 1 Q…
Hili v The Queen [2010] HCA 45
Citation 6

…ntence was manifestly excessive Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited R v Armstrong [2006] QCA 158, distinguished R v Baxter [2010] QCA 235, distinguished R v Crofts [1999] 1 Qd R 386; [1998] QCA 60, distinguished R v Eastwell [1992]…
R v Baxter [2010] QCA 235
Citation 7 (Para 12)

…or the offence of rape was “at the top of the range” must be viewed, having regard to contemporary sentencing principles as to “ranges”. [4][2010] QCA 235.…
R v Pham [2009] QCA 242
Citation 8 (Para 14)

…o long as all relevant considerations are given due attention, the discretionary character of sentencing will inhibit appellate interference.” [6][2009] QCA 242 at [7]. [7](2005) 228 CLR 357 at 406 [133].…
R v Armstrong [2006] QCA 158
Citation 9 (Para 11)

…R v Armstrong [2006] QCA 158 was a case of assault with intent to rape in which the maximum penalty was 14 years imprisonment. The offender, who weighed 90kg, accosted the complainant (who weighed 55 kg) as she was walking alone and in the dark. She became aware of Armstrong’s presence and made a 000 call before…
Markarian v The Queen [2005] HCA 25
Citation 10 (Para 14)

…siderations are given due attention, the discretionary character of sentencing will inhibit appellate interference.” [6][2009] QCA 242 at [7]. [7](2005) 228 CLR 357 at 406 [133].…
R v Osenkowski [2005] SASC 142
Citation 11 (Para 14)

…cing there is sometimes a legitimate role for differences of judicial view. These may occasionally favour the extension of leniency, as Osenkowski ((1982) 30 SASR 212 at 212-213 per King CJ) shows. Necessarily, there must also be room for the views of a judicial officer who takes a more punitive view of all of the re…
R v HX [2005] QCA 91
Citation 12 (Para 2)

…t sentence by the Attorney-General. It can have no relevance here. Nor does the applicant’s argument derive much support from a case such as R v HX [2005] QCA 91, which affirms little more than that sentences of three years imprisonment were within range for offences of rape in which penetration was effected by…
Johnson v The Queen [2004] HCA 15
Citation 13 (Para 39)

…is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected.” (emphasis added) [18](2004) 205 ALR 346. The “statutory regime”…
Mimehaven Pty Ltd v Cairns City Council [2002] QCA 276
Citation 14 (Para 41)

…ch the violence was limited to that which is inherent in the offence itself. [19] R v Eastwell [1992] QCA 109, per McPherson JA. [20]See R v Tory [2002] QCA 276 at [38].…
R v Crofts [1998] QCA 60
Citation 15 (Para 16)

…rior sexual offending, but did involve a number of previous convictions for offences of violence, including armed robbery in company. [31] R v Crofts [1998] QCA 60.…
R v Eastwell [1992] QCA 109
Citation 16 (Para 41)

…drawn between such a case and a case of rape in which the violence was limited to that which is inherent in the offence itself. [19] R v Eastwell [1992] QCA 109, per McPherson JA. [20]See R v Tory [2002] QCA 276 at [38].…

Legislation Cited

Penalties and Sentences Act 1992 (Qld) 9(2)(b)
2 mentions (from Para 22)

CITATION:	R v Mogg [2024] QCA 125
PARTIES:	R v MOGG, Raymond Joseph (applicant)
FILE NO/S:	CA No 184 of 2023 DC No 90 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 4 October 2023 (Clare SC DCJ)
DELIVERED ON:	25 June 2024
DELIVERED AT:	Brisbane
HEARING DATE:	9 May 2024
JUDGES:	Bond and Boddice JJA and Callaghan J
ORDERS:	1. Leave to appeal the sentence on the offence of attempted rape be granted. 2. The appeal against that sentence be dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of sexual assault, one count of attempted rape and one count of deprivation of liberty – where the applicant was sentenced to 18 months imprisonment for the first sexual assault count, two years imprisonment for the second sexual assault count, seven years imprisonment for the attempted rape count and 18 months imprisonment for the deprivation of liberty count – where the Crown submitted a sentencing range between seven to nine years for the attempted rape count –where the applicant’s counsel submitted a sentencing range of four to five years for the attempted rape count – whether the sentence was manifestly excessive Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited R v Armstrong [2006] QCA 158, distinguished R v Baxter[2010] QCA 235, distinguished R v Crofts [1999] 1 Qd R 386; [1998] QCA 60, distinguished R v Eastwell[1992] QCA 109, distinguished R v Pham (2009) 197 A Crim R 246; [2009] QCA 242, distinguished R v Tory[2022] QCA 276, distinguished
COUNSEL:	P J Wilson for the applicant R J Marks for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent