R v Om - [2007] QCA 101

SUPREME COURT OF QUEENSLAND

CITATION:

R v OM [2007] QCA 101

PARTIES:

R
v
OM
(applicant/appellant)

FILE NO/S:

CA No 222 of 2006
DC No 151 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

30 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2007

JUDGES:

Keane JA, Muir J and Philip McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal granted
2. Appeal allowed, and the sentence imposed below set aside
3. The following sentences are imposed:
(a) in respect of each of the three counts of rape, eight years imprisonment;
(b) in respect of the count of attempted rape, four years imprisonment;
(c) in respect of each of the two counts of procuring, four years imprisonment; and
(d) in respect of the count of indecent treatment, two years imprisonment
These sentences are to be served concurrently. The applicant will be eligible for parole after serving three years of the period of imprisonment resulting from those sentences

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES - where applicant pleaded guilty to three counts of rape, one count of attempted rape, two counts of procuring and one count of indecent treatment - where applicant sentenced to eight years imprisonment with a recommendation for parole after three years - whether sentence adequately discounted under s 13A Penalties and Sentences Act 1992 (Qld) - whether personal circumstances sufficiently taken into account in mitigation - whether learned sentencing judge erred in imposing single sentence for all counts

Penalties and Sentences Act 1992 (Qld), s 13A

R v B and P[1998] QCA 45, CA Nos 345 and 346 of 1997, 20 March 1998, considered

R v Crofts [1998] QCA 60; (1998) 100 A Crim R 503, applied

R v EC & Anor; ex parte A-G [1998] QCA 334, CA Nos 269 and 270 of 1998, 23 October 1998, applied

R v Parker [2007] QCA 22, CA No 298 of 2006, 5 February 2007, applied

COUNSEL:

The applicant/appellant appeared on her own behalf

B G Campbell for the respondent

SOLICITORS:

The applicant/appellant appeared on her own behalf

Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: On 13 April 2006, the applicant was convicted on her plea of guilty of two counts of procuring a person who was not an adult to engage in carnal knowledge, one count of indecent treatment of a child under 16 years of age, one count of attempted rape and three counts of rape. She was sentenced to eight years imprisonment with a recommendation that she be considered for parole after serving three years of that sentence.

The applicant seeks leave to appeal against her sentence. The applicant, who did not have the benefit of legal representation on…

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 Om

Details

AGLC: R v Om [2007] QCA 101
Case: [2007] QCA 101
Decision Date: 30 March 2007

CaseChat Overview and Summary

In the matter of R v Om, the applicant, having pleaded guilty to three counts of rape, one count of attempted rape, two counts of procuring, and one count of indecent treatment, appealed against the sentence imposed by the trial court. The applicant was sentenced to eight years imprisonment with a recommendation for parole after three years. The Queensland Court of Appeal was tasked with determining whether the sentence adequately accounted for the statutory discounts under s 13A of the Penalties and Sentences Act 1992 (Qld), whether the applicant's personal circumstances were sufficiently considered, and whether the trial judge erred in imposing a single sentence for all counts.

The court considered whether the sentence imposed was manifestly inadequate, taking into account the statutory provisions and the principles of sentencing in similar cases. It examined the gravity of the offences, the discount applied for the guilty plea, and the mitigating factors presented. The court also reviewed whether the sentence was cumulative or concurrent, and whether the imposition of a single sentence was appropriate given the nature and circumstances of the offences.

The Court of Appeal found that the sentence imposed was manifestly inadequate, as it did not sufficiently discount the overall punishment for the multiple offences committed by the applicant. The court held that the statutory discount for the guilty plea was not adequately applied, and that the personal circumstances of the applicant were not sufficiently taken into account. The imposition of a single sentence for all counts was deemed inappropriate, as it did not adequately reflect the gravity of the individual offences.

Consequently, the Court of Appeal allowed the appeal, set aside the sentence imposed by the trial court, and imposed new sentences. Each of the three counts of rape resulted in a sentence of eight years imprisonment, the count of attempted rape attracted a four-year sentence, each of the two counts of procuring attracted a four-year sentence, and the count of indecent treatment attracted a two-year sentence. These sentences are to be served concurrently, with the applicant eligible for parole after serving three years.

Orders

Orders of the court

1. Application for leave to appeal granted

2. Appeal allowed, and the sentence imposed below set aside

3. The following sentences are imposed:

(a) in respect of each of the three counts of rape, eight years imprisonment;

(b) in respect of the count of attempted rape, four years imprisonment;

(d) in respect of the count of indecent treatment, two years imprisonment

These sentences are to be served concurrently. The applicant will be eligible for parole after serving three years of the period of imprisonment resulting from those sentences

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v OM [2007] QCA 101
PARTIES:	R v OM (applicant/appellant)
FILE NO/S:	CA No 222 of 2006 DC No 151 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	30 March 2007
DELIVERED AT:	Brisbane
HEARING DATE:	22 March 2007
JUDGES:	Keane JA, Muir J and Philip McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal granted 2. Appeal allowed, and the sentence imposed below set aside 3. The following sentences are imposed: (a) in respect of each of the three counts of rape, eight years imprisonment; (b) in respect of the count of attempted rape, four years imprisonment; (c) in respect of each of the two counts of procuring, four years imprisonment; and (d) in respect of the count of indecent treatment, two years imprisonment These sentences are to be served concurrently. The applicant will be eligible for parole after serving three years of the period of imprisonment resulting from those sentences
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES - where applicant pleaded guilty to three counts of rape, one count of attempted rape, two counts of procuring and one count of indecent treatment - where applicant sentenced to eight years imprisonment with a recommendation for parole after three years - whether sentence adequately discounted under s 13A Penalties and Sentences Act 1992 (Qld) - whether personal circumstances sufficiently taken into account in mitigation - whether learned sentencing judge erred in imposing single sentence for all counts Penalties and Sentences Act 1992 (Qld), s 13A R v B and P[1998] QCA 45, CA Nos 345 and 346 of 1997, 20 March 1998, considered R v Crofts [1998] QCA 60; (1998) 100 A Crim R 503, applied R v EC & Anor; ex parte A-G [1998] QCA 334, CA Nos 269 and 270 of 1998, 23 October 1998, applied R v Parker [2007] QCA 22, CA No 298 of 2006, 5 February 2007, applied
COUNSEL:	The applicant/appellant appeared on her own behalf B G Campbell for the respondent
SOLICITORS:	The applicant/appellant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent