R v P - [1998] QCA 402

IN THE COURT OF APPEAL

[1998] QCA 402

SUPREME COURT OF QUEENSLAND

C.A. No. 300 of 1998

Brisbane [R. v. P]

THE QUEEN

v.
P

(Applicant) Appellant

McMurdo P. Pincus J.A. Williams J.

Judgment delivered 1 December 1998

Separate reasons for judgment of each member of the Court each concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.
APPEAL AGAINST SENTENCE ALLOWED.
SENTENCE IMPOSED BELOW IN RESPECT OF COUNTS 3, 4 AND 5 SET ASIDE
AND IN LIEU THEREOF, A SENTENCE OF 14 YEARS IMPRISONMENT
IMPOSED ON EACH OF COUNTS 3, 4 AND 5.
THE ORDER REQUIRING THAT SENTENCES ON COUNTS 3, 4, 5 AND 6 BE
SERVED CUMULATIVELY WITH SENTENCES IMPOSED ON COUNTS 1 AND 2
IS DELETED.
OTHERWISE ORDERS BELOW CONFIRMED.

CATCHWORDS:	CRIMINAL LAW - sentencing - appeal against conviction and application for leave to appeal against sentence - sexual offences against a child - procuring prostitution by a person not an adult - knowingly participating in the provision of prostitution - rape - unlawful anal intercourse - whether 18 years imprisonment manifestly excessive - stepfather - used complainant for substantial profit - physical and psychological dominance of sexually inexperienced 15-16 year old girl over 12 month period - extensive criminal history but none for sexual offences
*R v C & Anor; exparte A-G (Qld)* (C.A. Nos 269 and 270 of 1998, 23 October 1998) *R.H. McL.* [1998] VSCA 61 (9 October 1998) *R. v. B and P* (C.A. Nos 345 and 346 of 1997, 20 March 1998) *R. v. D* (C.C.A. No. 272 of 1991, 13 December 1991) *R. v. Eather* (1994) 71 A.Crim.R. 305 *R. v. E* (C.C.A. No. 98 of 1989, 4 August 1989) *R. v. K* (C.C.A. No. 13 of 1991, 28 March 1991) *R. v. Losch* (C.C.A. No. 248 of 1980, 3 March 1981) *R. v. Luke* (C.C.A. No. 342 of 1986, 4 March 1987) *R. v. I. A. Shaw* [1996] 1 QdR. 641 *R. v. S* (C.A. No. 316 of 1993, 7 October 1993) *R. v. S* (C.A. No. 373 of 1997, 20 March 1998)
Counsel:	Mr A. Rafter for the applicant/appellant. Mr D. Meredith for the respondent.
Solicitors:	Dearden Lawyers for the applicant/appellant. Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:	29 October 1998.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 300 of 1998

Brisbane

Before	McMurdo P. Pincus J.A. Williams J.
[R v. P]

THE QUEEN

v.
P

(Applicant) Appellant

REASONS FOR JUDGMENT - McMURDO P.

Judgment delivered 1 December 1998

The appellant was convicted after a trial in the District Court at Ipswich on 11 August 1998 of three counts of rape (counts 3, 4 and 5) and one count of unlawful anal intercourse (count 6). At the commencement of the trial in the presence of the jury, he pleaded guilty to one count of knowingly participating in the provision of prostitution by a person not an adult (count 2). On the morning…

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 [1998] QCA 402
Case: [1998] QCA 402
Decision Date: 1/12/1998

CaseChat Overview and Summary

The appellant was convicted in the Supreme Court of Victoria for procuring prostitution by a person not an adult, knowingly participating in the provision of prostitution, and committing rape and unlawful anal intercourse against a 15-16-year-old girl. The appellant, who was the step-father of the victim, exercised physical and psychological dominance over her over a twelve-month period. The appellant, who had an extensive criminal history, used the victim for his substantial profit. The appellant appealed against his conviction and sought leave to appeal against his sentence of 18 years imprisonment, which he submitted was manifestly excessive. The appeal against conviction was dismissed, but leave to appeal against sentence was granted.

The court was required to determine whether the sentence imposed by the primary judge was manifestly excessive. The court was also required to consider the principles governing the exercise of the discretion to grant leave to appeal against sentence. The court had to examine the nature and circumstances of the offence, the appellant's criminal history, and the appellant's prospects of rehabilitation.

The court held that the sentence was manifestly excessive. The court held that the primary judge had given insufficient weight to the appellant's criminal history and prospects of rehabilitation. The court held that the appellant's criminal history, which included a history of violence, was a significant aggravating factor. The court held that the appellant's prospects of rehabilitation were poor. The court held that the sentence imposed by the primary judge was manifestly excessive and granted leave to appeal against sentence. The appeal against conviction was dismissed.

The court ordered that the appeal against conviction be dismissed and that leave to appeal against sentence be granted.

Orders