R v OQ

Case [2011] QCA 348 6 December 2011

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SUPREME COURT OF QUEENSLAND

CITATION:

R v OQ [2011] QCA 348

PARTIES:

R
v
OQ
(applicant)

FILE NO/S:

CA No 224 of 2011
DC No 239 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

6 December 2011

DELIVERED AT:

Brisbane

HEARING DATE:

28 October 2011

JUDGES:

Muir and Chesterman JJA and Margaret Wilson AJA
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 the applicant was the older brother of the complainant – where the offences were committed when the applicant was 14 to 16 years old and the complainant was four to seven years old – where the applicant stood to be sentenced as an adult – where the applicant was charged with 14 counts of indecent treatment of a child under 16, with the circumstance of aggravation that the child was under 12, and one count of rape – where the applicant pleaded guilty to 11 of the indecent treatment charges, and went to trial on the rape charge and three of the indecent treatment charges – where the applicant was found guilty of the rape and one of the indecent treatment charges – where the applicant was sentenced to two and a half years’ imprisonment for the rape and 18 months’ imprisonment for each of the indecent treatment offences, to be served concurrently – where the parole eligibility date was fixed after about six months’ imprisonment – where the applicant contends that the sentence was manifestly excessive – where the sentencing judge had a discretion pursuant to s 160D of the Penalties and Sentences Act 1992 (Qld) to fix a parole eligibility date – where the applicant contends that the sentencing judge erred in failing to consider whether the sentences should be suspended – where the applicant could not be ordered to serve a term of imprisonment longer than the period of detention that could have been imposed if he had been sentenced as a child pursuant to s 144 of the Youth Justice Act 1992 (Qld) – where counsel for the applicant submitted that the parole eligibility date was illusory because the applicant was unlikely to be released on parole at or near the parole eligibility date – where counsel for the applicant contended that the applicant would have to complete a sex offender’s treatment program before having any prospect of obtaining parole – whether the sentence imposed was manifestly excessive

Acts Interpretation Act 1954 (Qld), s 20C
Corrective Services Act 2006 (Qld), Part 5, s 184
Criminal Code 1899 (Qld), s 11, s 210, s 348
Criminal Law Amendment Act 1997 (Qld), s 23
Juvenile Justice Act 1992 (Qld), s 8, s 120, s 121
Juvenile Justice Legislation Amendment Act 1996 (Qld)
Penalties and Sentences…

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 OQ

Details

AGLC: R v OQ [2011] QCA 348
Case: [2011] QCA 348
Decision Date: 6 December 2011

CaseChat Overview and Summary

The applicant, OQ, appealed against the sentence imposed by the trial judge in the District Court of Queensland. OQ was the older brother of the complainant, and the offences were committed when OQ was between 14 and 16 years old and the complainant was between four and seven years old. OQ was charged with 14 counts of indecent treatment of a child under 16, with the circumstance of aggravation that the child was under 12, and one count of rape. He pleaded guilty to 11 of the indecent treatment charges and went to trial on the rape charge and three of the indecent treatment charges. OQ was found guilty of the rape and one of the indecent treatment charges and was sentenced to two and a half years’ imprisonment for the rape and 18 months’ imprisonment for each of the indecent treatment offences, to be served concurrently. The parole eligibility date was fixed after about six months’ imprisonment.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. The applicant contended that the sentence was manifestly excessive and that the sentencing judge had a discretion pursuant to s 160D of the Penalties and Sentences Act 1992 (Qld) to fix a parole eligibility date. The applicant also contended that the sentencing judge erred in failing to consider whether the sentences should be suspended. The court noted that the applicant could not be ordered to serve a term of imprisonment longer than the period of detention that could have been imposed if he had been sentenced as a child pursuant to s 144 of the Youth Justice Act 1992 (Qld). The court considered the submissions made by counsel for the applicant that the parole eligibility date was illusory because the applicant was unlikely to be released on parole at or near the parole eligibility date. However, the court held that the sentence imposed was not manifestly excessive.

The court held that the sentence imposed was not manifestly excessive. The court noted that the applicant had committed serious offences against a vulnerable child and that the sentence reflected the seriousness of the offences. The court also noted that the applicant had pleaded guilty to 11 of the indecent treatment charges and that this was a mitigating factor. The court held that the sentencing judge had not erred in failing to consider whether the sentences should be suspended. The court held that the applicant had not established that the sentence imposed was manifestly excessive and that there were no grounds for interfering with the sentence. The application for leave to appeal against sentence was refused.

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.

Citations

AGLC Citation

R v OQ [2011] QCA 348

Most Recent Citation

Secretary to the Department of Justice v NJI [2014] VSC 531

Cases citing this decision · 4 of 4 shown

R v HCL
[2023] QCA 68 Para 4

…o pleaded guilty to one count of rape when he was at least 14 years old. He partially penetrated the complainant’s vagina with his erect penis. [31][2011] QCA 348. [32][2012] QCA 335.…
R v SDZ
[2023] QCA 30 Para 27

…nce. Circumstances may warrant imposing a sterner penalty than would have been visited upon the child.’” (citations omitted) [7][2011] QCA 348.…
R v MCM
[2017] QCA 187

…The applicant submits that when regard is had to comparable cases, namely, R v OQ [2011] QCA 348, R v Hennessy [2002] QCA 523, R v Beaver [1992] QCA 238, R v Stallan [1995] QCA 109, and R v J; ex parte Attorney-General [2001] QCA 216, a sentence of imprisonment requiring the applicant to serve actual time in cust…
Secretary to the Department of Justice v NJI
[2014] VSC 531 Para 1

…, or sentencing of, an adult. [22]See R, JM v Police (2012) 113 SASR 9, considering s 31(4) of the Criminal Law (Sentencing) Act 1988 (SA) and R v OQ [2011] QCA 348, considering s 144 of the Youth Justice Act 1992 ( Qld).…

View all 4 citing cases →

Cases cited in this decision · 10 of 10 shown

Lacey v Attorney-General (Qld)
[2011] HCA 10 Para 1

…ttorney- General’s appeal against sentence, decided before Lacey v Attorney-General of Queensland .[28] [27][2001] QCA 216. [28](2011) 275 ALR 646; [2011] HCA 10.…
R v SBR
[2010] QCA 94 Para 1

…not treat digital penetration of the vagina as rape.[26] Here the rape was constituted by penile penetration, albeit to a limited extent. [25][2010] QCA 94. [26]At the beginning of the period specified on the indictment, which is the relevant time, the law did not treat digital penetration of the vagina as rape.…
R v JJ; R v JJ; ex parte
[2005] QCA 153 Para 1

…e sentence for the rape to three years, and making the other sentences be served cumulatively on that sentence. [23] R v JJ; R v JJ; ex parte A-G [2005] QCA 153.…
R v PGW
[2002] QCA 462

…J; ex parte A-G [2005] QCA 153, considered R v M [1999] QCA 118, cited R v PGW (2003) 134 A Crim R 593; [2002] QCA 462, considered R v SBR [2010] QCA 94, considered R v WBD (2001) 120 A Crim R 565; [2001] QCA 250, considered Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74, cited COUNSEL: J J Allen for the a…
R v WBD
[2001] QCA 250 Para 1

…ade an error of principle, this court set aside the sentence and re-sentenced. It imposed a sentence of three and a half years’ imprisonment. [24][2001] QCA 250.…
R v J
[2001] QCA 216 Para 1

…n the present case. Further, it was an Attorney- General’s appeal against sentence, decided before Lacey v Attorney-General of Queensland .[28] [27][2001] QCA 216. [28](2011) 275 ALR 646; [2011] HCA 10.…
R v Ianculescu
[1999] QCA 439 Para 1

…inal Code s 11(2); Acts Interpretation Act 1954 (Qld) s 20C; Penalties and Sentences Act 1992 (Qld) s 180. See also R v Ianculescu [2000] 2 Qd R 521; [1999] QCA 439 at [32] – [34].…
R v M
[1999] QCA 118 Para 1

…victim impact statement in determining the effect the offending had had on her. [6] Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74; R v M [1999] QCA 118.…
Siganto v the Queen
[1998] HCA 74 Para 1

…Honour relied on her victim impact statement in determining the effect the offending had had on her. [6] Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74; R v M [1999] QCA 118.…
Lacey v Attorney-General of Queensland
[2011] HCA 107

…nd Sentences Act 1992 (Qld), s 180, Part 9 Division 3 Youth Justice Act 1992 (Qld), s 140, s 144, s 227 Lacey v Attorney-General of Queensland (2011) 275 ALR 646; [2011] HCA 10, cited R v Ianculescu [2000] 2 Qd R 521; [1999] QCA 439, cited R v J; ex parte A-G (Qld) [2001] QCA 216, considered R v JJ; R v JJ; ex parte A-G [2005] QCA 153, conside…

Legislation cited in this decision · 8

Juvenile Justice Act 1992 (Qld)
121(3)(a), 8 3 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
180 2 mentions (from Para 1)
Youth Justice Act 1992 (Qld)
140 2 mentions (from Para 1)
Acts Interpretation Act 1954 (Qld)
20C 1 mention (from Para 1)
Corrective Services Act 2006 (Qld)
1 mention (from Para 1)
Criminal Law Amendment Act 1997 (Qld)
23 1 mention
Criminal Law Amendment Act 2000 (Qld)
24 1 mention (from Para 1)
Juvenile Justice Legislation Amendment Act 1996 (Qld)
1 mention (from Para 1)

CITATION:	R v OQ [2011] QCA 348
PARTIES:	R v OQ (applicant)
FILE NO/S:	CA No 224 of 2011 DC No 239 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	6 December 2011
DELIVERED AT:	Brisbane
HEARING DATE:	28 October 2011
JUDGES:	Muir and Chesterman JJA and Margaret Wilson AJA 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 the applicant was the older brother of the complainant – where the offences were committed when the applicant was 14 to 16 years old and the complainant was four to seven years old – where the applicant stood to be sentenced as an adult – where the applicant was charged with 14 counts of indecent treatment of a child under 16, with the circumstance of aggravation that the child was under 12, and one count of rape – where the applicant pleaded guilty to 11 of the indecent treatment charges, and went to trial on the rape charge and three of the indecent treatment charges – where the applicant was found guilty of the rape and one of the indecent treatment charges – where the applicant was sentenced to two and a half years’ imprisonment for the rape and 18 months’ imprisonment for each of the indecent treatment offences, to be served concurrently – where the parole eligibility date was fixed after about six months’ imprisonment – where the applicant contends that the sentence was manifestly excessive – where the sentencing judge had a discretion pursuant to s 160D of the Penalties and Sentences Act 1992 (Qld) to fix a parole eligibility date – where the applicant contends that the sentencing judge erred in failing to consider whether the sentences should be suspended – where the applicant could not be ordered to serve a term of imprisonment longer than the period of detention that could have been imposed if he had been sentenced as a child pursuant to s 144 of the Youth Justice Act 1992 (Qld) – where counsel for the applicant submitted that the parole eligibility date was illusory because the applicant was unlikely to be released on parole at or near the parole eligibility date – where counsel for the applicant contended that the applicant would have to complete a sex offender’s treatment program before having any prospect of obtaining parole – whether the sentence imposed was manifestly excessive Acts Interpretation Act 1954 (Qld), s 20C Corrective Services Act 2006 (Qld), Part 5, s 184 Criminal Code 1899 (Qld), s 11, s 210, s 348 Criminal Law Amendment Act 1997 (Qld), s 23 Juvenile Justice Act 1992 (Qld), s 8, s 120, s 121 Juvenile Justice Legislation Amendment Act 1996 (Qld) Penalties and Sentences…