R v Newman (a pseudonym) - [2021] QCA 13

SUPREME COURT OF QUEENSLAND

CITATION:

R v Newman (a pseudonym) [2021] QCA 13

PARTIES:

R
v
NEWMAN (a pseudonym)
(applicant)

FILE NO/S:

CA No 320 of 2019
DC No 284 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Brisbane – Date of Sentence: 8 November 2019 (Dearden DCJ)

DELIVERED EX TEMPORE ON:

9 February 2021

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2021

JUDGES:

Sofronoff P and Mullins JA and Boddice J

ORDER:

Application for leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was 14 years old and the complainant six years old at the time of the offence – where the applicant had no previous criminal history and had been diagnosed with multiple intellectual disabilities – where the applicant pleaded guilty to one count of rape – where the applicant was sentenced under the Youth Justice Act 1992 (Qld) to three and a half years detention with 60 per cent to be served in detention and a conviction recorded – whether the applicant’s personal circumstances operates as a mitigating or aggravating factor or has no substantial influence at all

R v Neumann; Ex parte Attorney-General (Qld) [2007] 1 Qd R 53; [2005] QCA 362, explained
R v Patrick (a pseudonym); R v Patrick (a pseudonym); Ex parte Attorney-General (Qld) (2020) 3 QR 578; [2020] QCA 51, followed

COUNSEL:

J P Benjamin for the applicant (pro bono)
D Balic for the respondent

SOLICITORS:

No appearance for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: In March 2018, when the applicant was 14 years old, he went to Kmart at Wynnum Plaza after school where he loitered there for some time, watching school-aged children, while pushing a shopping trolley. He noticed the complainant, a six year-old girl. He lured the complainant into an area in the store where they could not be seen, and in that place, he pulled her onto the floor, removed her underwear and inserted a 20 centimetre pen into her vagina. He then ran away. The complainant’s mother heard her daughter’s screams of pain and found her, lying on the ground with the end of the pen protruding from her body. Police were called and the child was taken to hospital. The complainant was in pain and was bleeding. An examination showed abrasions and lacerations within her vagina caused by multiple insertions of the pencil which, as the examining doctors said, would have been extremely painful. The doctors treated the complainant with antibiotics and scheduled her for further treatment. The complainant and her parents were recent migrants and were not Australian citizens. For this reason they were not entitled to free treatment. The medical treatment given to the complainant cost $10,000. There remains the possibility that the healing of these lacerations may lead to the formation of scar tissue which may affect…

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 Newman (a pseudonym)

Details

AGLC: R v Newman (a pseudonym) [2021] QCA 13
Case: [2021] QCA 13
Decision Date: 9 February 2021

CaseChat Overview and Summary

The case of R v Newman involved the applicant appealing against a sentence imposed after he pleaded guilty to one count of rape. The applicant was 14 years old at the time of the offence, and the complainant was six years old. The applicant had no prior criminal history and had been diagnosed with multiple intellectual disabilities. The court sentenced the applicant under the Youth Justice Act 1992 (Qld) to three and a half years detention, with 60 per cent to be served in detention, and a conviction recorded. The applicant sought leave to appeal, arguing that the sentence was manifestly excessive or inadequate, considering his personal circumstances.

The primary legal issue before the court was whether the applicant's personal circumstances, including his age, intellectual disabilities, and lack of criminal history, operated as a mitigating or aggravating factor or had no substantial influence on the sentence. The court had to determine if the sentence imposed was disproportionate to the offence and the offender’s circumstances. The applicant contended that the sentence was excessive, given the mitigating factors, while the prosecution argued that the sentence was appropriate considering the gravity of the offence.

The court found that the sentence was proportionate to the offence and the offender’s circumstances. It held that while the applicant’s personal circumstances were indeed significant, they did not render the sentence manifestly excessive or inadequate. The court considered the severity of the offence, the vulnerability of the complainant, and the need for the sentence to serve as a deterrent. The court concluded that the sentence appropriately balanced the need for punishment and rehabilitation, taking into account the applicant’s age and intellectual disabilities. Therefore, the court refused the application for leave to appeal.

In conclusion, the court ruled that the sentence imposed on the applicant was proportionate and did not warrant an appeal. The court’s decision emphasised the importance of considering both the severity of the crime and the personal circumstances of the offender when determining an appropriate sentence.

Orders

Orders of the court

Application for leave to appeal is 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 Newman (a pseudonym) [2021] QCA 13
PARTIES:	R v NEWMAN (a pseudonym) (applicant)
FILE NO/S:	CA No 320 of 2019 DC No 284 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Brisbane – Date of Sentence: 8 November 2019 (Dearden DCJ)
DELIVERED EX TEMPORE ON:	9 February 2021
DELIVERED AT:	Brisbane
HEARING DATE:	9 February 2021
JUDGES:	Sofronoff P and Mullins JA and Boddice J
ORDER:	Application for leave to appeal is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was 14 years old and the complainant six years old at the time of the offence – where the applicant had no previous criminal history and had been diagnosed with multiple intellectual disabilities – where the applicant pleaded guilty to one count of rape – where the applicant was sentenced under the Youth Justice Act 1992 (Qld) to three and a half years detention with 60 per cent to be served in detention and a conviction recorded – whether the applicant’s personal circumstances operates as a mitigating or aggravating factor or has no substantial influence at all R v Neumann; Ex parte Attorney-General (Qld) [2007] 1 Qd R 53; [2005] QCA 362, explained R v Patrick (a pseudonym); R v Patrick (a pseudonym); Ex parte Attorney-General (Qld) (2020) 3 QR 578; [2020] QCA 51, followed
COUNSEL:	J P Benjamin for the applicant (pro bono) D Balic for the respondent
SOLICITORS:	No appearance for the applicant Director of Public Prosecutions (Queensland) for the respondent