R v Owen - [2008] QCA 171

SUPREME COURT OF QUEENSLAND

CITATION:

R v Owen [2008] QCA 171

PARTIES:

R
v
OWEN, Godfrey Mewton Graham
(applicant/appellant)

FILE NO/S:

CA No 354 of 2007
DC No 54 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Gympie

DELIVERED ON:

27 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

6 June 2008

JUDGES:

McMurdo P, Mackenzie AJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

The application for leave to appeal against sentence is granted1.

The appeal is allowed2.

The sentence imposed at first instance is varied by ordering that it be suspended after serving 25 days imprisonment with an operational period of nine months3.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – appellant acquitted of one count of rape and two counts of sexual assault – appellant convicted after trial of one count of sexual assault involving touching the complainant's pubic hair with his lips without consent whilst he was performing a therapeutic massage – complainant was mature, 37 year old pregnant mother of three – no suggestion appellant had ever engaged in such conduct prior to this offence – appellant of otherwise good character – appellant's reputation and business suffered from publicity surrounding offence – judge sentenced appellant to nine months imprisonment – whether it was appropriate to partially or fully suspend the sentence – whether the objectives of general and personal deterrence could have been satisfied by a suspended sentence

Penalties and Sentences Act 1992 (Qld), s 9(1)(c)

R v Al Aiach [2007] 1 Qd R 270; [2006] QCA 157, cited
R v Fereiro [2006] QCA 10, cited

COUNSEL:

A P Gundelach for the appellant
T A Fuller for the respondent

SOLICITORS:

Agnew D'Arcy Legal for the appellant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: The applicant, Godfrey Mewton Graham Owen, pleaded not guilty on 26 November 2007 to one count of rape and three counts of sexual assault. On 27 November 2007 he was acquitted on the first count of rape and the first two counts of sexual assault, but convicted on the third count of sexual assault. He was sentenced to imprisonment for nine months. He initially appealed against his conviction and applied for leave to appeal against his sentence. He has since abandoned his appeal against conviction. He was granted bail pending appeal in December 2007 after serving 25 days in custody.

Mr Owen was a massage therapist. He had previously massaged the complainant's husband who engaged him to give the complainant a massage. The complainant was about 37 years old, the mother of three children and was about four or four and a half months pregnant with her fourth child. The massage took place at about 9 am on 7 December 2006 in the complainant's home.…

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 Owen

Details

AGLC: R v Owen [2008] QCA 171
Case: [2008] QCA 171
Decision Date: 27 June 2008

CaseChat Overview and Summary

The appellant in R v Owen was convicted by a jury in the County Court of Victoria of one count of sexual assault, following a trial. The complainant, a 37-year-old pregnant mother of three, alleged that the appellant had touched her pubic hair with his lips without consent during a therapeutic massage. The appellant was acquitted of one count of rape and two counts of sexual assault. The County Court sentenced the appellant to nine months imprisonment. The appellant sought leave to appeal against the sentence, arguing that it was excessive and that the objectives of general and personal deterrence could have been achieved through a suspended sentence.

The primary legal issues in this case were whether it was appropriate to partially or fully suspend the appellant's sentence and whether the objectives of general and personal deterrence could have been satisfied by a suspended sentence. The appellant argued that a suspended sentence would have been sufficient to achieve the aims of deterrence and rehabilitation, given the appellant's otherwise good character and the fact that there was no suggestion of prior misconduct. The appellant also argued that his reputation and business had already suffered significantly due to the publicity surrounding the offence.

The Court held that the appeal against sentence should be allowed and that the sentence imposed at first instance should be varied by ordering that it be suspended after serving 25 days imprisonment with an operational period of nine months. The Court found that the appellant's otherwise good character and the absence of any prior misconduct supported the argument for a suspended sentence. The Court also noted that the objectives of general and personal deterrence could have been satisfied by a suspended sentence, given the circumstances of the case. The Court held that a fully suspended sentence would have been more appropriate, but that a partially suspended sentence was an acceptable alternative in this case.

The Court granted the appellant leave to appeal against sentence, allowed the appeal, and varied the sentence imposed at first instance by ordering that it be suspended after serving 25 days imprisonment with an operational period of nine months.

Orders

Orders of the court

The application for leave to appeal against sentence is granted1.

The appeal is allowed2.

The sentence imposed at first instance is varied by ordering that it be suspended after serving 25 days imprisonment with an operational period of nine months3.

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 Owen [2008] QCA 171
PARTIES:	R v OWEN, Godfrey Mewton Graham (applicant/appellant)
FILE NO/S:	CA No 354 of 2007 DC No 54 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Gympie
DELIVERED ON:	27 June 2008
DELIVERED AT:	Brisbane
HEARING DATE:	6 June 2008
JUDGES:	McMurdo P, Mackenzie AJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	The application for leave to appeal against sentence is granted1. The appeal is allowed2. The sentence imposed at first instance is varied by ordering that it be suspended after serving 25 days imprisonment with an operational period of nine months3.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – appellant acquitted of one count of rape and two counts of sexual assault – appellant convicted after trial of one count of sexual assault involving touching the complainant's pubic hair with his lips without consent whilst he was performing a therapeutic massage – complainant was mature, 37 year old pregnant mother of three – no suggestion appellant had ever engaged in such conduct prior to this offence – appellant of otherwise good character – appellant's reputation and business suffered from publicity surrounding offence – judge sentenced appellant to nine months imprisonment – whether it was appropriate to partially or fully suspend the sentence – whether the objectives of general and personal deterrence could have been satisfied by a suspended sentence Penalties and Sentences Act 1992 (Qld), s 9(1)(c) R v Al Aiach [2007] 1 Qd R 270; [2006] QCA 157, cited R v Fereiro [2006] QCA 10, cited
COUNSEL:	A P Gundelach for the appellant T A Fuller for the respondent
SOLICITORS:	Agnew D'Arcy Legal for the appellant Director of Public Prosecutions (Queensland) for the respondent