R v P - [2001] QCA 25

[2001] QCA 25

COURT OF APPEAL

McPHERSON JA
MACKENZIE J
MULLINS J

CA No 298 of 2000

THE QUEEN

P Applicant

BRISBANE

..DATE 09/02/2001

JUDGMENT

MULLINS J: The applicant applies for an extension of time within which to apply for leave to appeal against the sentence of eight years' imprisonment imposed for one count of rape and for which the applicant was convicted on 25 November 1999. It was count 1 on the indictment.

The offence was committed between 1 April and 31 July 1983. The complainant was 12 and a half years old and the stepdaughter of the applicant. The applicant and the complainant's mother had married in April 1978. At the same trial the applicant was also convicted of two counts of rape against the same complainant which occurred in December 1988 and between 1 March 1989 and 30 April 1989 respectively. They were counts 2 and 3 on the indictment.

The applicant was sentenced on 25 November 1999 to eight years' imprisonment on each of the three counts. The applicant appealed against his convictions on each count. The appeal against conviction on count 1 was dismissed. The appeal against the convictions on counts 2 and 3 was allowed and a new trial was ordered. The Director of Public Prosecutions has now decided not to proceed with a retrial on counts 2 and 3.

It is submitted on behalf of the applicant that until the decision was made by the Director of Public Prosecutions not to proceed with a retrial on counts 2 and 3 it was premature for the applicant to seek a review of his sentence on count 1 only. That approach is not disputed by the Director of Public Prosecutions.

The applicant now invites the Court to follow the approach of this Court in Murphy CA 562 of 1996, 3 March 1997. It is submitted on behalf of the applicant that consistently with that approach in Murphy the sentence which should now be imposed for count 1 is seven years' imprisonment.

Leave to extend time is opposed on the basis that there is no prospect of a successful appeal in relation to the sentence. It is submitted on behalf of the Crown that a sentence of eight years' imprisonment for a single count of rape in the circumstances of the offence cannot be said to be manifestly excessive.

The circumstances of the offence were that it was a Saturday morning and the complainant was on the lounge watching television. Her mother was out shopping. The applicant came and sat down on the lounge and started touching her on the area of the chest and vagina. She said to him, "Stop, don't do that," and got up to walk away. The applicant grabbed the complainant and pushed her down. He said to her, "If you have sex with me I'll stop touching you," to which she replied, "No." The complainant was on her back and the applicant was on top of her so that she…

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 P

Details

AGLC: R v P [2001] QCA 25
Case: [2001] QCA 25
Decision Date: 09/02/2001

CaseChat Overview and Summary

In the matter of R v P, the applicant seeks an extension of time to appeal against the sentence of eight years' imprisonment imposed for one count of rape. The offence was committed against the applicant's 12-and-a-half-year-old stepdaughter between 1 April and 31 July 1983. The applicant was convicted on 25 November 1999 on count 1 of the indictment, and sentenced to eight years' imprisonment on each of three counts of rape against the same complainant. The applicant appealed against his convictions on each count, but the appeal against conviction on count 1 was dismissed, while the appeal against the convictions on counts 2 and 3 was allowed and a new trial was ordered. The Director of Public Prosecutions has decided not to proceed with a retrial on counts 2 and 3.

The legal issue in this case is whether the applicant should be granted an extension of time to appeal against the sentence for count 1, given that the Director of Public Prosecutions has decided not to proceed with a retrial on counts 2 and 3. The applicant argues that it was premature for him to seek a review of his sentence on count 1 only until the decision was made by the Director of Public Prosecutions not to proceed with a retrial on counts 2 and 3. However, the Crown opposes the application on the basis that there is no prospect of a successful appeal in relation to the sentence. The court must consider whether the sentence of eight years' imprisonment for a single count of rape in the circumstances of the offence can be said to be manifestly excessive.

The court found that the sentence of eight years' imprisonment for count 1 was appropriate, having regard to the age of the complainant at the time of the offence and the aggravating circumstance that a relationship of trust had existed between the applicant and the complainant at the time of the offence. The court also found that there may be some cases where the quashing of other convictions on the same indictment may oblige the Court to reconsider afresh the level of sentencing for the remaining count or counts, but this case is different from such cases. The court therefore dismissed the application to extend time.

The final orders were that the application to extend time is dismissed.

Orders